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.