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Court: Names of 9/11 detainees can be kept secret

From Kevin Bohn

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WASHINGTON (CNN) -- A federal appeals court ruled Tuesday that the U.S. government can withhold the names of people detained as part of the September 11 investigation, reversing a lower court decision.

In a 2-1 ruling, a panel from U.S. Circuit Court of Appeals for the District of Columbia said the detainees' names fall under a law enforcement exemption of the Freedom of Information Act and therefore should not have to be disclosed.

The decision also concluded the government can withhold dates and locations of arrest, detention and release of all detainees, including those charged with federal crimes, and the names of the detainees' attorneys.

"Neither the First Amendment nor federal common law requires the government to disclose the information sought by the plaintiffs," the panel ruled.

In December 2001, a civil rights group, the Center for National Security Studies, brought a lawsuit trying to force the government to reveal the detainees' names, their attorneys, the dates of their arrests and release, the locations of their arrests and detention and the reasons for their detention.

Most of the contention deals with lack of information concerning the 762 illegal aliens detained as part of the September 11 investigation.

More than 500 of those illegal aliens have been deported, officials said. A year ago, 74 remained in custody, according to court documents.

The suit also sought information about the 134 people who were criminally charged as part of the broad September 11 probe.

U.S. Attorney General John Ashcroft has argued, and Justice Department officials separately told the courts, that releasing the requested information could hamper ongoing investigations. Letting terrorist groups know who was in custody could give them an advantage, they said.

The appeals court deemed that argument "reasonable."

The court said revealing the information the Center for National Security Studies sought "would inform terrorists of both the substantive and geographic focus of the investigation, ... would inform terrorists which of their members were compromised by the investigation" and possibly "how more adequately to secure their clandestine operations in future terrorist undertakings."

In August, a lower court ordered the government to disclose the names of detainees and their attorneys but held officials could withhold all other detention information.

The issue of how the Justice Department and its affiliated agencies handled the detainees once they were in custody was the subject of a critical internal report by the department's inspector general. The report criticized how many detainees were kept in custody with no bond until the FBI cleared them and the physical and verbal abuse some faced while in jail. (Full story)

Justice Department officials said some of the inspector general's recommendations have been implemented and that others are under review.

Kate Martin, director of the Center for National Security Studies and its lead counsel in the case, said the plaintiffs will appeal.

"We are disappointed that for the first time in U.S. history, a court has approved secret arrests, and we plan to pursue the case," she said.

"We now know that keeping the arrests secret allowed the Justice Department to cover up its abuses of the detainees documented by the inspector general's report this month," she said, saying the report contradicted Ashcroft's statements that detainees' rights were being respected and that each detainee would be allowed to have an attorney and contact their families.

"There is every reason to fear that the attorney general continues to cover up the fact that people were jailed because of their religion or ethnicity," Martin said. "There is more and more evidence that none but a tiny handful of the detainees had any links to terrorism."

In a Justice Department statement, Ashcroft welcomed the appellate decision.

"Today's ruling is a victory for the Justice Department's careful measures to safeguard sensitive information about our terrorism investigations as well as the privacy of individuals who chose not to make public their connection to the government's probe," the statement said.

"The Justice Department is working diligently to prevent another catastrophic attack on America. We are pleased the court agreed we should not give terrorists a virtual road map to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts."

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