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Court Rules Gov’t Can Keep Sept. 11 Arrest Names Secret

By Neil A. Lewis


A sharply divided appeals court ruled Tuesday that the Bush Justice Department was within its rights when it refused to release the names of more than 700 people arrested for immigration violations in connection with the Sept. 11 terrorist attacks.

The 2-to-1 ruling by a panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the government’s contention that disclosing the names of people arrested on immigration charges after the September 2001 attacks could help al-Qaida terrorists figure out how law-enforcement officials were conducting the nation’s antiterrorist campaign.

The opinion extends a string of significant legal victories for the White House from federal judges as they begin to rule on challenges to the administration’s actions in response to the terrorist attacks.

An appeals court in Philadelphia has already upheld the right of the administration to hold hearings in secret on possible immigration violations in connection with the attacks. Another panel of the District of Columbia Circuit has ruled that the detainees at Guantanamo Bay in Cuba are outside the reach of American constitutional law.

And in January, the appeals court based in Richmond, Va., gave the administration a major victory in ruling that a wartime president like Bush could indefinitely detain a U.S. citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer.

Tuesday’s case pitted two fundamental values against each other -- the right of the public to know details of how its government operates versus the government’s need to keep some information secret to protect national security.

The majority opinion written by Judge David B. Sentelle said that courts had always shown deference to executive branch officials in the field of national security.

“The need for deference in this case is just as strong as in earlier cases,” he wrote in the opinion joined by Judge Karen LeCraft Henderson. “America faces an enemy just as real as its former Cold War foes.”

Sentelle said that when government officials tell the court that disclosing the names of the detainees will produce harm, “It is abundantly clear that the government’s top counterterrorism officials are well suited to make this predictive judgment. Conversely, the judiciary is in an extremely poor position to second-guess” government views in the field of national security.

Judge David S. Tatel offered a blistering dissent, saying that the majority of the court simply agrees with what he says is the Bush administration’s demand to “simply trust its judgment.”

Tatel wrote that “by accepting the government’s vague, poorly explained allegations, and by filling in the gaps in the government’s case with its own assumptions about facts absent from the record, this court has converted deference into acquiescence.”

The opinion also demonstrated again the ideological divide on the nation's appeals court and especially the D.C. Circuit, widely viewed as second in importance only to the Supreme Court. Sentelle and Henderson are Republican appointees while Tatel is a Democratic appointee.