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Dangerous Veil of Secrecy

January 15, 2004

The U.S. Supreme Court on Monday bought the Bush administration's leaky logic on terrorism, tacitly endorsing secret detentions of hundreds of suspects after the 9/11 attacks. Moreover, by embracing the ends-justify-means reasoning in this case, the justices set a dangerous precedent as they ponder other key challenges to the administration's anti-terror policies before them this term.

Without comment, the court let stand a federal appellate ruling that disclosing names of any of the suspects could endanger national security. Federal agents swept up at least 750 men immediately after the attacks, nearly all of them Muslims. Most were immigrants nabbed for visa problems or minor criminal charges. All were held for months in secret -- some for nearly a year -- before they were deported or released.

The Justice Department has identified 129 individuals against whom it brought criminal charges; none was charged in connection with the Al Qaeda attacks. Yet the government withheld most of their names, their location and the reasons for their arrest. Not even their wives or lawyers could find them. Atty. Gen. John Ashcroft persuaded the appeals panel last year -- and the high court, unfortunately, has now affirmed this argument -- that disclosing information about these jailed individuals would give terrorists "a virtual road map to our investigation."

But why then did the government trumpet the arrest of Zacarias Moussaoui, asserting he was to have been the "20th hijacker" on Flight 93, which crashed in Pennsylvania? And why publicize the arrest of John Walker Lindh, the "American Taliban" picked up on an Afghan battlefield? And why talk about the arrest of Richard Reid, the convicted Al Qaeda operative who tried to blow up an airliner by igniting his explosive-filled shoes?

Even if the government had kept mum about those arrests, the "road map" argument collapses. When key operatives vanish, it's naive to think that co-conspirators wouldn't fear their arrest. The veil of secrecy the administration has utilized to cloak much of its anti-terrorism efforts is incompatible with democratic principles of openness and accountability. It ignores history: When no one watches, good people too readily may act on shaky assumptions and treat the innocent like criminals; a government acting in secret imperils citizens as well as immigrants.

The Bush administration argues that the courts owe it deference where national security is concerned. The president's obligation to defend the nation, his lawyers argue, sometimes outweighs the liberties the Bill of Rights guarantees individuals. Deference, perhaps, but not acquiescence. Other pending cases, including a challenge to the administration's secret detentions of U.S. citizens as enemy combatants, present the Supreme Court with the same tough balancing test. This week's decision should not be the template.

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