MARGARET WARNER: Ever since the 9/11 attacks, the U.S. Government's secret detentions of hundreds of terror suspects has stirred controversy and legal scrutiny. But on Tuesday, the Justice Department won a big victory from a federal appeals court panel in Washington.
By a two-to-one majority, the court upheld the legality of the administration's secret detentions of one class of potential terror suspects: Non-citizens who had committed immigration violations.
"While the name of any individual detainee may appear innocuous or trivial," the majority wrote, "it could be of great use to al-Qaida in plotting future terrorist attacks or intimidating witnesses in the present investigation."
The decision reversed a district court ruling last August that had ordered the government to release the names and stated: "Secret arrests are a concept odious to a democratic society."
This week's appeals court ruling took no notice of a critical report two weeks ago, in which the Justice Department's inspector general found that none of the 700-plus detainees were ever charged with terrorism.
Yesterday, Attorney General John Ashcroft revealed the secret arrest of another class of terror suspect: Iyman Faris, a naturalized American from Kashmir working as a truck driver in Ohio, was arrested early this spring, according to Ashcroft.
In a secret court proceeding, Faris admitted being involved in an al Qaida plot to destroy the Brooklyn Bridge. Faris is now cooperating with authorities.
Earlier this month, Ashcroft told Congress his department has several such secret plea agreements underway.
JOHN ASHCROFT: We have obtained criminal plea agreements, many under seal, from more than 15 individuals who according to the agreements -- and in order to have the agreement carried out -- will continue and must continue to cooperate with the government in its investigation of terrorists.
MARGARET WARNER: Ashcroft said these secretly detained individuals have provided critical intelligence about al-Qaida operations in the U.S.
MARGARET WARNER: So is the government justified in handling terror suspects in secret? Here to discuss that are Kate Martin, director of the Center for National Security Studies in Washington, an advocacy group for protecting civil liberties in national security matters; she was lead counsel in the lawsuit that tried to compel the administration to release the names of the detainees; and John Yoo, a law professor at the University of California at Berkeley and a visiting scholar at American Enterprise Institute. Until recently, he was a deputy assistant attorney general in the Justice Department's Office of Legal Counsel. Welcome to you both.
The detainees and the arrests revealed yesterday, of course very different types of cases, but all were done in secret. Why is that not justified, Kate Martin?
KATE MARTIN: Well, I think the First Amendment makes it unjustified. Of course, the First Amendment will recognize the difference between the detainees that were the subject of our lawsuit and what happened yesterday. When the government arrests someone, it is... of course, it is the most awesome power that it can use. And the only protection against abuse of that power is that it's done in public.
The detainees who are the subject of our lawsuit not only were not connected to terrorism, their rights were violated. They had no lawyers. They weren't charged. They didn't enter plea agreements. And perhaps most significantly, no court ever approved their arrest being in secret.
And the indictment yesterday, the agreement yesterday, and all of those plea agreements he's talking about, the secrecy in those cases has been approved by the court presumably on a showing that the particular individual involved... there's evidence that they're related to al-Qaida, there's some particular reason to believe that al-Qaida doesn't know they're in prison, and that telling al-Qaida they're in prison will have these effects. That is the evidence missing in our case.
MARGARET WARNER: So you would make a distinction between the two kinds of cases saying it's not justified in the case of the detainees, but it might well be in the case like Mr. Faris?
KATE MARTIN: Oh, it's constitutionally quite different.
MARGARET WARNER: How do you see it?
JOHN YOO: I think one thing to understand is that there's a tremendous government interest here that is common to both cases, and that is what the government has called the mosaic theory in the litigation that Kate participated in that's been used in some of the other litigation. And the idea of that is if al-Qaida which carefully monitors our press, our politics, through the Internet and other mechanisms, is able to get a global picture, a mosaic of all the people we're detaining, why we're detaining them, where they're being detained, what they're doing, what they've said to us if they're cooperating or not, it will allow them to see the methods that our law enforcement and intelligence agencies are using to catch them.
MARGARET WARNER: All right. But I'm sure Kate Martin's... I didn't read every word of the brief, but I know civil libertarians have said, wait a minute, with the detainees, ultimately their families did know. Most of them did ultimately get lawyers or some of them did. In other words they were allowed to make phone calls. If the families knew, why couldn't the public know? Why is there a greater risk?
JOHN YOO: Well, I think there's two things. First, is that it's important to understand that the rights were not all the violated of all the detainees. They did have rights to lawyers. They were presented to neutral magistrates whose job it is to sit and be a check on the Executive Branch.
So the question is, should the press be given this kind of right which we've allowed in only one kind of proceeding, criminal trials, should we allow them to have access to all these proceedings, which is something that's easier to do when the criminal justice system is being used to retrospectively figure out who already did a crime, who is guilty, how did it happen? The justice system now is being reoriented to stopping future attacks like what Mr. Faris was up to.
And there the question worth asking is: Do we want to give the press and the public the same broad scope of access when we can look at what they want to see and it could actually cause a harm if it were to become more publicized?
MARGARET WARNER: What about this argument, Kate Martin, the mosaic argument, that if al-Qaida operatives know the whole pattern of arrests, it does enable them to know more about how law enforcement is operating against them?
KATE MARTIN: Well, what the government has never explained is how, if what happened is a thousand people were arrested because they were Arab or Muslim and had no connection to terrorism, how will it be useful to al-Qaida to know that? And it looks like that's what happened. That's the number-one answer to the mosaic theory. I mean, sure, they'll know that the FBI went on a wild goose chase. But, you know, that might already be known.
The second answer is that it's contradicted by the government's own declarations. In the year after the arrests when the government did pick up al-Qaida people, it held a press conference to announce that, for example, the attorney general in Moscow announces, "we've captured Jose Padilla." Here's his name; here's how we know that he's connected to al-Qaida. Here's what we think he was doing. Then they say, "He's cooperating with our interrogators and telling us this, that and the other thing."
So I think that as time has passed, that what we feared to be the case has turned out to be the case: That secrecy, as secrecy has historically always done in the case when the government, you know, arrests people in secret in the middle of the night, is basically being used by the government to cover-up misconduct. We know that it was used to cover up the fact that these people weren't brought before neutral magistrates. They never saw a federal judge, and they were denied the right to a lawyer all the while the attorney general and his political deputies are denying that such is the case.
Now we still need to know whether or not the basis for picking up these people were that they were Arabs and Muslims, and we need to know it both from a civil liberties standpoint and from a security standpoint.
MARGARET WARNER: Just a couple of those issues. First of all... well, go ahead.
JOHN YOO: Two points: One, the idea that there might be some kind of political misconduct or legal misconduct, and, two, why do we disclose anybody being captured.
MARGARET WARNER: The inconsistency.
JOHN YOO: Kate has made that argument very compellingly in her briefs; the D.C. Circuit addressed that this week; and the Supreme Court has addressed it in CIA cases. And the basic idea is that sometimes the government does want to release some kind of information, because it might what they would call sort of shake the network. If you release the fact that we caught Jose Padilla, you might see activity in the al-Qaida network and see who starts talking to who, who noticed it, what changes they made in reaction to that.
So there can be strategic release of information in order to test what al-Qaida is doing to monitor us in their reaction. It doesn't mean to be the case that because we want to be secret in some cases we have to be secret in all cases. That's kind of a very lawyerly way to think about it, because it's saying why aren't you being principled? But from the operational perspective, it can make sense to, you know, let some things be public and some not.
As to the political or legal misconduct point there are a number of checks on the Justice Department and what it does. The office of inspector general is just one example where someone within the Executive Branch, his job is to watch out for that kind of thing. Congress can and continues to do oversight hearings. And the courts themselves are ultimately there.
All the individuals in these cases have the right of "habeas corpus" review. They could use the legal system. Some of them did. This case is an example of the legal system being used to review what the Executive Branch did, so I think there are sufficient checks.
I don't understand what we need to do is to provide a list of everybody we've caught, why we caught them and where we caught them in order to comply with the need to make sure there's sufficient oversight of the Executive Branch.
MARGARET WARNER: Can I ask you all one final question if I could, unless you want to jump back in here. In the decision, the majority appeals court ruling, underlying it was this deference that the judges felt they owed to the executive branch, that they didn't want to second guess the president. I mean, one quote was we have consistently reiterated the principle of deference to the Executive when national security concerns are implicated. Do you think that deference is appropriate or inappropriate?
KATE MARTIN: I think it's contrary to what the Constitution sets up. The Constitution sets up is the principle that the Executive Branch can explain to the Judiciary and give its reasons to the Judiciary about why something has to be secret.
And as the dissent points out, even under the standard of deference here, the government failed to give any persuasive reasons for why this has to be secret. And they're arguing "well don't look at our reasons. We say national security. Rule in our favor." There's nothing in the Constitution that says that's the way it's supposed to be.
JOHN YOO: I think it's a little more subtle than that in that what the court actually gave deference to this week was the government's assertion that the release of the information had harm the national security, and the court said, "How do we know what's going to harm the national security? How can we as a court sitting in Washington reading legal briefs actually be able to tell whether this piece of information thrown out into the sea of information will actually harm our national security, actually impede the intelligence agencies?" They have to....
KATE MARTIN: You have to explain why withholding the names of people who aren't connected to terrorism would be helpful to al-Qaida. That's never been explained. And that's not a secret.
JOHN YOO: One thing would be even seeing the wrong trees that we bark up may help al-Qaida. It might say, look, here's a way that they think they're following us. It doesn't work. So let's continue to fool them. Let’s continue to send false signals...
KATE MARTIN: They know that. You've barked up the road of Arab and Muslim males. They figured that out.
JOHN YOO: And they quickly reacted, and now they're recruiting Americans like Jose Padilla, who are not Arab Muslims to come back...
KATE MARTIN: He's...
JOHN YOO: Into the country..
KATE MARTIN: Arab or Muslim I said.
MARGARET WARNER: We'll leave it there. Thanks, Kate Martin and John Yoo, thank you both.