The Justice Department's post-Sept. 11 detention policies, involving hundreds of people suspected of having links to terrorism, are coming under new attack in court and from the nation's largest association of lawyers.
Two federal judges this month ordered the government to release the names of hundreds detained during the past 11 months in the terror probe, and they criticized treatment of a US citizen held as an enemy combatant. And this week, the American Bar Association (ABA) passed a resolution criticizing the government for holding foreigners without providing access to lawyers or prompt hearings.
The actions represent the the most significant rebuke yet of the balance struck by the executive branch between security and civil liberties in its war on terror.
"The administration has taken the position that it can act against US citizens or noncitizens, whether captured abroad or on US soil, in ways that are unprecedented," says Daniel Kanstroom, a Boston College law professor. The courts are struggling with what the limits of the executive authority are, he says.
America has a long tradition of wartime detentions in the name of national security, best exemplified by the internment of Japanese-Americans during World War II .
But this time, says David Cole, a Georgetown University law professor, "courts are standing up to the administration and not accepting carte blanche assertions of unlimited authority." The reason judges are more willing to second guess the executive branch, he says, is the amorphous nature of the war on terror.
Since Sept. 11, the Justice Department has used multiple tools to hold individuals: criminal charges and immigration law violations as well as material witness statutes intended to hold people who may have knowledge of a crime. In addition, two US citizens are being held entirely outside the criminal justice system at a military jail as military combatants.
The Justice Department has refused to release information about most detainees claiming that even revealing their names could compromise the investigation by tipping off terrorists or making detainees reluctant to help. But that argument didn't persuade Federal District Court Judge Gladys Kessler who ruled earlier this month that the Justice Department must release detainees' names.
"Unquestionably, 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," Judge Kessler wrote in her opinion. The government has appealed her decision.
Similarly, the Justice Department is resisting efforts by another federal judge in Norfolk, Va. to make the government turn over documents justifying the detention of Yaser Esam Hamdi, a US citizen held as an enemy combatant in a military jail.
If upheld, the rulings could provide the first peek behind the veil of secrecy surrounding hundreds detained since last fall. Little is known about the detainees except for periodic updates on the number held. As of June, a total of 751 individuals had been detained on immigration charges and 129 on criminal charges in the terrorism probe. Many were released or deported and about 140 remained in custody as of June. An undisclosed number have been held as material witnesses.
Whatever its value in preventing terror attacks, the information blackout has made it harder for immigration lawyers to help detainees who have no links to terrorism but were simply caught in the investigation, says Lucas Guttentag, director of the ACLU's immigration rights project.
Emad Ahmed Mohamed Basha, an 18-year-old Egyptian busboy, for example, was detained last October in Brooklyn for overstaying his visa. Relatives eventually contacted Aslan Soobzokov, a South Paterson, N.J., attorney who has represented more than 15 people from the Middle East detained on immigration charges since last fall. Mr. Basha was held for eight months before authorities determined he had no links to terror and allowed him to return to Egypt, Mr. Soobzokov says.
Concerns about similar cases prompted the ABA to conclude that the government has not shown that secrecy is essential for security. It adopted a resolution Tuesday calling for the Immigration and Naturalization Service to disclose the names of detainees, ensure their immediate access to lawyers, and provide them with prompt hearings.