On Aug. 2, U.S. District Court Judge Gladys Kessler ordered the U.S. Department of Justice to release the names of more than 1,180 individuals the government has detained in connection with its post-Sept. 11 investigation of terrorist activities.

It was a victory for our democratic form of government. The 47-page ruling opens by stating a premise most Americans believe:

"Secret arrests are a concept odious to a democratic society and profoundly antithetical to the bedrock values that characterize a free and open one such as ours."

In 1954, former U.S. Supreme Court Justice William O. Douglas, in his An Almanac of Liberty, wrote: "It would be unthinkable that in this country a person could be spirited away, held incommunicado, tried in secret, and executed."

Except for the portion of his statement regarding execution, the unthinkable has now become not only thinkable but hard reality in the United States.

In response, 23 civil rights, human rights and civil liberties organizations filed a federal lawsuit against the Department of Justice for the release of the information in December. The organizations asked the government to release the names of the individuals detained, when and where they were arrested and then jailed, the names of attorneys representing detainees and the government's policy directives regarding arresting and holding detainees.

Judge Kessler ordered the government to release the names of all detainees within 15 days - except those names sealed by specific court order and those of detainees who have signed a statement requesting their identity be kept confidential.

"Here, the government has used its arrest power to detain individuals as part of an investigation that is widespread in its scope and secrecy. Plaintiffs voice grave concerns about the abuse of this power, ranging from denial of the right to counsel and consular notification, to discriminatory and arbitrary detention, to the failure to file charges for prolonged periods of detention, to mistreatment of detainees in custody," Judge Kessler noted.

Of the nearly 1,200 individuals detained in the government's original sweep, according to court records, approximately 130 were sent back to their home countries for infractions of immigration law, less than 25 for minor crimes, while 73 face federal criminal charges unrelated to terrorism and 74 are still being held in custody by immigration officials.

No one arrested in the sweeps after the Sept. 11 attacks has been charged in connection with those attacks.

"Unquestionably," Judge Kessler 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."

And unquestionably, that political philosophy is the cornerstone of our democracy.

The government had argued that the release of the names of detainees might inform terrorists about the direction the investigation was taking and "could reasonably be expected to interfere with enforcement proceedings." Further, it argued, disclosure of the names could allow terrorists to create false and misleading evidence.

Judge Kessler found all three lines of reasoning highly speculative, unconvincing and without supporting evidence.

The judge also found the government's treatment of material witness information "deeply troubling." A material witness is not accused of a crime, but has been arrested because it is believed his or her testimony is important to a criminal proceeding. A material witness can be held only until his or her testimony can be secured by deposition. Yet the government has kept everything about these individuals secret.

"The public has no idea whether there are 40, 400 or possibly more people in detention on material witness warrants," the judge wrote. The government's rationale for "withholding the identities of material witnesses is fundamentally wrong as a matter of law," she added.

In this secrecy-addicted administration, even its own policy directives are clandestine. In response to a Freedom of Information Act request, the government released only two documents regarding "policy directives" about the detainees, and the FBI, according to Judge Kessler, didn't even bother to conduct a search for the documents requested, nor did it provide an explanation as to why no search was done.

It isn't credible that federal law enforcement agencies as well as FBI, Justice and Immigration and Naturalization Service offices throughout the nation were told how to proceed in the post-Sept. 11 sweeps without creating a single document.

The Justice Department did win one victory. Judge Kessler agreed with the government's reasons for withholding the dates and locations of arrest, detention and release: Dates and locations could be useful to terrorist organizations seeking to finding out the Justice Department's arrest strategy. Further, the information could jeopardize the safety of those who run the detention facilities and the inmates held there.

This nation's history has repeatedly shown that an independent judiciary is essential to holding reluctant administrations to constitutional and democratic standards.

Judge Kessler's ruling upholds those standards.

Charles Levendosky is editorial page editor of the Casper (Wyo.) Star-Tribune.

Copyright © 2002, The Baltimore Sun

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