JIM LEHRER: The detainees decision. A federal judge in Washington has ordered the Justice Department to release the names of all detainees associated with the 9/11 investigation within 15 days. The judge said such a release is essential to verifying whether the government is operating within the bounds of the law.
Here to discuss the decision are Kate Martin, director for the Center for National Security Studies; she was the lead attorney for the organizations that brought the suit -- and Victoria Toensing, former deputy assistant attorney general in the Reagan Administration; she is now in private practice in Washington.
First some basics, see if we can agree on some numbers here. The names of how many people has the judge ordered be released?
KATE MARTIN: Well, it's somewhere over 750. Justice Berman said it had arrested 1182 people in November 5th. The judge says we don't know how many people altogether, we've been given a list of 750 people arrested on immigration charges, and some additional unknown number have been arrested as material witnesses.
JIM LEHRER: How many of the -- you agree that it's roughly 700 names that are involved here?
VICTORIA TOENSING: Well, that's the number that the judge ordered. But if we're going to look at basics we really need to outline what we're talking about.
JIM LEHRER: We will in a minute. How many of these people are still in custody, according to the Justice Department?
VICTORIA TOENSING: One hundred and twenty-nine who have been charged with criminal offenses. Of that, there's about 60 some, 70 some. And 74, I believe, of the 750…
JIM LEHRER: You agree that that's the number?
KATE MARTIN: Those two numbers plus the number of material witnesses, which we don't know, which the judge says could be four, forty, or four hundred.
JIM LEHRER: Okay. You wanted to say something else about the basics?
VICTORIA TOENSING: Yes. In order to discuss this, we have to divide it into the three different groups, because they are each treated differently. So you have the detainees who are immigration violators, you have the material witnesses, and you have the people who have been charged with federal crimes.
The ones who have been charged with federal crimes, their name have been released from the get go because that's under federal law. So really we're only talking here about two categories: that is the immigration violators and the material witness people.
JIM LEHRER: And the judge has ordered the names of those two categories released, correct?
VICTORIA TOENSING: Correct.
JIM LEHRER: Within 15 days.
VICTORIA TOENSING: That's correct.
JIM LEHRER: All right. Now, why do you want the names of people who have already been released? You asked for that, why did you want it and why is that necessary from your point of view?
KATE MARTIN: For three reasons. First of all, the secret arrests are, as the judge says, a concept odious to a democratic society. The U.S. has never rounded up hundreds of people in secret, and so the principal is very important.
But more importantly than the principle is that we want the names to know whether or not the people's rights were violated when they were rounded up and arrested. And thirdly, we need the names in order to know whether or not this investigation is in fact focusing on terrorists or is a dragnet aimed at the Arab and Muslim communities.
JIM LEHRER: And the objection that the Justice Department has that you share is what?
VICTORIA TOENSING: Well, secret arrest is a nice catchy phrase, but it just doesn't apply here. As I said, the 129 were arrested under indictments. The immigration violators were arrested under immigration violation, they're under immigration judges.
And the material witnesses, each one of those affidavits for arrest, was signed by a judge. And a judge is still monitoring each one of those. So there's nothing secret here except Kate's group doesn't know about it, but the judicial system certainly knows about it.
JIM LEHRER: But there's been no public disclosure.
VICTORIA TOENSING: That is correct. That is correct.
JIM LEHRER: What is the theory under which there has not been public disclosure? What's the reason for that?
VICTORIA TOENSING: Well, there's never been public disclosure of immigration violators. It's only released under FOIA, the Justice Department -
JIM LEHRER: What's that? Oh, Freedom of Information Act.
VICTORIA TOENSING: -- the Freedom of Information Act, that's the only time those immigration people are released, because they have people who do that law at the Justice Department have said that on the record. And what we have here is a very big concern about the national security.
The Justice Department has set out an affidavit that if you release these names, and some of them are cooperating with the government, well, come on, you know, listen to this, those who say they want to come and kill us, why would we want to turn over those names to the terrorists?
The other concern of the Justice Department is called the "Mosaic Theory," that is that, and it's been long accepted in national security law, that if you release one thing, that appears on its face innocuous, that could mean something to people who really know other bits of information, like the terrorists.
For example, they'll know that that particular cell has been diminished by a certain number of people. We don't want the terrorists to know that.
JIM LEHRER: What's your problem with that?
KATE MARTIN: Can I just back up for one second?
JIM LEHRER: Sure.
KATE MARTIN: Immigration violators isn't exactly who we're talking about. We're talking about people charged with immigration violations, not people who have been found guilty of immigration violations. They were arrested and charged and jailed before they were found guilty.
And it's not true that those names are not usually public, they're always public. We've never had a system in which you can pick somebody up and jail them on immigration violations and have it be a secret. They issued a whole set of special orders sealing all of these cases.
JIM LEHRER: But you don't quarrel with that, I mean, if somebody was arrested, if somebody was just arrested on an immigration violation, unrelated to 9/11, unrelated to terrorism in any way, that would be a public record?
VICTORIA TOENSING: No.
JIM LEHRER: It would not be?
VICTORIA TOENSING: The Justice Department doesn't release it like it does for an indictment; we're going to disagree on this fact quite strongly. Under FOIA, it could be released, but usually the Justice Department makes an argument - the same FOIA arguments it made in this case -- about concerns, privacy being one of them. Why would somebody who was picked up and questioned and then released because the department -
JIM LEHRER: Without being charged?
VICTORIA TOENSING: -- without being charged, and the department decided that it was nothing, no problem here, why would he or she want her name be made public?
KATE MARTIN: Well, people who are arrested don't want their name being made public. And the control against abuse by the government is that when the government puts an individual in jail, that's what we're talking about, they have to make that public. This is the first time that hasn't happened.
JIM LEHRER: The first time it has not happened?
KATE MARTIN: The first time in our history that we confined maybe in the Palmer raids in the early part of the 20th century, people have been arrested, but not in secret.
JIM LEHRER: Do you dispute that?
VICTORIA TOENSING: Yes, I do dispute that. The immigration violators names are just not handed out.
KATE MARTIN: You can go to that courthouse and see their names posted on the courthouse.
VICTORIA TOENSING: Let me make a point here.
JIM LEHRER: Could a newspaper reporter take, find those names and publish them in a newspaper?
KATE MARTIN: Easily.
VICTORIA TOENSING: For some people. As I said, sometimes it's not objected to by the Justice Department. But in many other categories it is, and they can object…
JIM LEHRER: I don't think we're going to resolve that here tonight. But let's go to your point. You have a point that you think that these names should be released for the good of American society. You believe they should not be released for the good of American society. Make your case. What good will it do for all of America to know who these people were or are?
KATE MARTIN: Well, I think the first thing is the government, as the judge says, knows the power to arrest individuals is the most extraordinary power that the federal government possesses. And the check against abuse of that power is that it be done publicly. Here there is extensive evidence that the judge recounts that these people's rights have been violated --.
JIM LEHRER: Like what? What kind of rights?
KATE MARTIN: Their right to counsel was violated, that they were denied the right to counsel, and that they were in fact jailed on discriminatory and arbitrary grounds. In fact, and their right to counselor notification that they were held in maximum security conditions, held in solitary confinement, when they haven't been charged with any crime.
JIM LEHRER: So what your organization and others would do, if you got the names, you would go and ask them and run your own investigation to determine whether or not all of these abuses occurred?
KATE MARTIN: Right, with members of the press, that's what we would expect to have happen.
JIM LEHRER: What would be wrong with that?
VICTORIA TOENSING: Let me just clear up something because the judge never said that there were these abuses. She said some people have argued that there are these abuses, which is a very big distinction. I want to back up a little bit, because I investigated terrorism in the 1980s and I thought that I was doing such great stuff in bringing civility to terrorism by bringing all the culprits into a public court of law, a la Moussaoui, who is being charged in Virginia.
JIM LEHRER: As the potential 20th hijacker, right?
VICTORIA TOENSING: Right. But there is something different about an illegal act of war, which occurred on us in September of 2001, in that we have a national security issue, a very grave one. The criminal law cannot cope with national security concerns. What we're having to do is create, I think, a branch of law that takes into concern both national security and the new mandate to the FBI, which is preventing the next attack is more important than prosecuting the last one.
JIM LEHRER: But to Kate Martin's point that what she wants to find out is whether or not the rights of these folks were abused, is that something that you don't think is a legitimate concern?
VICTORIA TOENSING: That's right. It's not for Kate to do it, and actually the case law says it's not even for the courts to do it when there's national security concerns. Both the D.C. Circuit and the 4th Circuit, which just handed back an opinion to a trial judge in that area on these grounds said it's for the political branches to fight a war. That's the legislative and the executive, not for the courts to do it.
JIM LEHRER: Do you completely reject the idea that there is a special situation when there's terrorism involved, when we are in a state of war as we are now?
KATE MARTIN: I wouldn't disagree at all that the September 11 attacks were a terrible catastrophe and that extraordinary measures are needed to deal with them. One of the things that our lawsuit is about is finding out whether or not in fact the Justice Department is dealing with them in an effective manner or whether or not in fact it's just rounding up people who look like potential terrorists.
And if you look at what the Justice Department said in the lawsuit about who's been detained, and this is very important, the Justice Department has found a few individuals since September 11 who it has charged with terrorism.
All of those individuals have been publicly identified. In fact, the attorney general held a press conference announcing the arrest of one of those individuals. In this case, the government's national security claim about why they couldn't release the names had to do with they didn't want to give the terrorist organizations a road map as to who was in jail.
JIM LEHRER: The point that Ms. Toensing had. Right.
KATE MARTIN: Right. That claim was carefully analyzed by the judge and rejected as pure speculation. And she went through it very carefully and said in the first place that according to the government the terrorist organizations would already know who's in jail if their own associates are in jail, because they were free to call the terrorist organizations and tell them they were in jail.
But most importantly, perhaps, is the judge says the government -- although given the opportunity on more than one occasion, never makes any link between the people who are in jail and terrorism, in any way. They don't even claim to have evidence of that link.
JIM LEHRER: What about that?
VICTORIA TOENSING: It was just silliness, the judge said, because the government released some names, they should release them all. It's up to the executive branch, who is responsible for conducting this investigation, to decide whether they want to release some names, as a matter of strategy and tactics.
Kate's organizations are never going to have access to all the investigative information that the Justice Department does. How in the world is she going to evaluate whether somebody is being held validly or not, she doesn't get access to the classified information.
JIM LEHRER: Is the Justice Department, you understand the Justice Department is going to appeal this decision, this is not over?
VICTORIA TOENSING: Oh, I think there's going to be a stay...
JIM LEHRER: Fifteen days.
VICTORIA TOENSING: …15 days procedurally you couldn't carry out what the judge ordered them to do.
JIM LEHRER: So this is not over?
VICTORIA TOENSING: It is not over.
JIM LEHRER: All right. Thank you both very much.