Open-and-Shut Cases

While Detainees Languish the Feds Subvert Their Own Secrecy Arguments

The Justice Department's logic for holding hundreds of terrorism-related captives in secret got very fuzzy last week, when it publicly announced detailed indictments against five terrorist suspects in Detroit and Seattle.

In recent high-profile court battles with constitutional watchdogs, the government has cited national security concerns in refusing to disclose more than 700 detainees' names or to open certain immigration hearings even to family and the press.

The Justice Department has stressed its reluctance to provide "a blueprint for terrorists," who might piece together U.S. investigative strategy from such public information.

The national security excuse has been used to hold certain U.S. citizens in closed captivity. Since May, Brooklyn native and so-called "dirty bomber" Jose Padilla has remained incommunicado as an "enemy combatant," without ever being charged, on a naval brig off the coast of South Carolina. The Bush administration has claimed that it can hold him there indefinitely. Said lawyer Donna Newman, who has been parrying with the government over her June 11 habeas corpus petition on Padilla's behalf, "Because of national security concerns, they're afraid for me even to go speak to my client, in case I run out and tell the world."

Last Wednesday, however, federal prosecutors released indictments positively dripping with investigative detail in two separate terrorism probes—with at least one suspect still at large. The 24-page indictment out of Detroit named four Middle Eastern men on charges of operating a " 'sleeper' operational combat cell" linked to Al Qaeda. The men procured false passports and social security numbers, planned to buy weapons for overseas operatives, and apparently cased Detroit Metropolitan Airport and tourist hot spots like Disneyland and the Las Vegas MGM Grand Hotel in the name of terrorism, the government claims.

Prosecutors sketched out a history of holy war as interpreted by investigators, revealing details on the suspects' activities stretching back as far February 1998. Even with redacted passages, the amount of information provided was so great that the Detroit Free Press was able, in fact, to construct a "blueprint"—entitled "Timeline: A Plot for Terror?"—of the group's alleged activities. The paper offered a cheat sheet on the men, listing their nationalities, the prisons where they are being held, and their reported undercover guises—one worked at an Edy's ice cream store in the airport, another as an airport dishwasher and chicken processor, a third as a computer programmer.

The same day, prosecutors in Seattle charged American James Ujaama—hailed by local supporters as a principled community activist—with plotting to set up an Al Qaeda training camp on a farm in Bly, Oregon. Details included his travels in October 1999 from Seattle to Bly to learn about firearms. The government claimed he communicated with a militant Muslim cleric in London about the location's assets and designed Web sites for him.

Last week's indictments seemed to reveal exactly the sort of information the government said it wanted to protect in a recent court fight with civil liberties organizations seeking the names of more than 750 September 11 detainees. Justice Department lawyers argued the "mosaic theory" for concealing the identities, saying that even an apparently meaningless roster of names could spell out something significant to a terrorist observer. Such clues could jeopardize the overall U.S. terrorism probe, the government argued.

Federal judge Gladys Kessler blasted the government's reasoning in her August 2 decision, pointing out that some detainees had already released their own information, that the Justice Department had also revealed identities in certain cases, and that, most important, the government had failed "to substantiate the [detainees'] purported connection to terrorism." (She wryly observed that any terrorists on the outside would no doubt have gathered that their compatriots were captured, not having heard from them these many months.)

Last week's indictments fueled skepticism about the correlation between the secret detentions and court hearings and any actual terrorism suspicions. Lee Gelernt, lead immigration lawyer for the American Civil Liberties Union, which last Monday won a federal appeals court decision denouncing the government for undemocratically sealing detainee hearings, said, "One thing that's becoming clear is that the overwhelming number of these immigrant detainees—if not all of them—have only actually been found guilty of visa violations or other immigration violations, and they have not been linked to terrorism." Given the Detroit and Seattle indictments, he said, the government's national security rationale for closing the hearings was even less credible—and the logic was always shaky. "Zacarias Moussaoui is charged with terrorism—his hearings are open. But visa violators, their hearings are not," Gelernt said.

Newman, Padilla's lawyer, said last week's indictments showed that "the government knows how to prosecute terrorist cases in the civil court system." There are ways to preserve national security in civilian trials, she pointed out. But she has long maintained, as she wrote in her habeas petition, "The evidence linking Padilla to the alleged 'dirty bomb' plot is weak at best. There is insufficient evidence for the government to obtain an indictment."

The Justice Department did not return calls seeking clarification of its 9-11 secrecy policy. But for the government's critics, last week's events called for some serious explaining: If national security and significant amounts of public information can coexist—as the recent court papers in Detroit and Seattle indicate—then why is the government fighting to keep secret hundreds of detainee cases and hearings?

 
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