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No camera crews are embedded in the U.S. Department of Justice, so its report in May to Congress on how it has been conducting the war against terrorism provided a rare and welcome source of information. Yet congressional critics maintained that this report was typical of the Bush administration’s grudging attitude toward sharing power and even information with Congress. This self-study came after repeated requests for information. It provided only the information the Justice Department wanted to share. And it was vague in some places, sketchy in others. This critique is familiar because it also describes the administration’s attitude toward sharing information with the press and public and toward sharing power with the third branch of the federal government — the judiciary. Initial reluctance is followed by sporadic concessions and iron-fisted retention of control, especially of the information on which decisions are based. In litigation, the administration has justified this attitude by arguing that the president, as commander-in-chief, is the only one in a position to decide how to wage a war against terrorism and how much to reveal to the public about the actions of his subordinates, including their detention and surveillance practices. No one, they contend — not Congress, not the courts — is in a position to second-guess these decisions. When asked what checks ensure that the president and Justice will not abuse the expanded detention and surveillance powers they have accrued, the administration has suggested that because the president is making political decisions, the appropriate check is political accountability. We can vote against the president in 2004 if we disapprove of how he is defining and exercising his powers, and so there is no real need for Congress or the courts to do anything other than defer to the executive branch decisions, which have been carefully made. One problem with that argument is that voters need to know how the president is using his newly enlarged powers before we can evaluate whether or not he is abusing them. And there is so much that we do not know. The government has been reluctant to release information about its detention practices, for example, even in circumstances where federal judges have concluded that the government’s claimed need for secrecy was exaggerated. Shortly after Sept. 11, 2001, the government detained more than 1,000 people, some as material witnesses, some for suspected immigration violations, some on suspicion of petty crimes. The Department of Justice initially declined to reveal the number of detainees, their names, locations, or length of detentions. When a coalition of 21 organizations brought a Freedom of Information Act (FOIA) claim in federal court, the government continued to fight disclosure, revealing what we now know (such as the number of detainees) only under judicial pressure. After many months of litigation, Judge Gladys Kessler of the federal district court in Washington, D.C., concluded that the government’s asserted need for secrecy, at least with respect to some of the requests, was overblown. The government has also resisted scrutiny of the grounds for its detention of individuals. When lawsuits were brought on behalf of some of the approximately 700 Guantanamo detainees, the government persuaded two federal courts (including the 9th U.S. Circuit Court of Appeals) that no American court has jurisdiction over those claims and that a variety of plaintiffs lacked standing. The government has also declared those detainees not to be prisoners of war and thus has denied them Geneva Convention hearings to determine whether their capture was a mistake. So except for the occasional, circumscribed news story the government has allowed, we do not yet know who is being detained or why. We do know that at least two American citizens, Yasser Hamdi and Jose Padilla, have been designated “enemy combatants” and detained for months on American soil with no charges brought against them. The government resisted habeas corpus review of the legality of the detentions, contesting the standing of the lawyer who brought a petition on Hamdi’s behalf and objecting to the fact that Padilla, who was being held incommunicado and prevented from seeing his lawyer, had not signed the petition that the lawyer had brought on his behalf. When those procedural objections were overcome (Hamdi’s father filed on his son’s behalf), the government relented and did not argue for a wholesale suspension of habeas corpus. Instead, as in its report to Congress, Justice acknowledged the legitimacy of another branch of government reviewing its decisions, but kept tight control over the information it released and the scope of that other branch’s role. The department persuaded both the 4th U.S. Circuit Court of Appeals and federal Judge Michael Mukasey of the Southern District of New York to employ an extremely deferential standard in reviewing the government’s designation of enemy combatants, on the rationale that these are primarily political decisions to be made by the president as commander-in-chief of the war against terrorism. Under this deferential standard, both detentions were upheld on the basis of hearsay allegations in a government affidavit. We still do not know what Hamdi or Padilla might say about the government’s allegations. Both continue to be held incommunicado. The government has also tried to shield its use of the deportation power, holding the deportation hearings of 611 post-9/11 detainees in secret. The 6th U.S. Circuit Court of Appeals declared that the public and press have a presumptive First Amendment right of access to observe deportation proceedings (“democracy dies behind closed doors,” in Judge Damon Keith’s now famous dictum) and concluded that the government had exaggerated its asserted need to keep secret the identities of prospective deportees, at least as the policy was being applied to a Detroit imam, Rabih Haddad, who had already told the world about his deportation proceeding. The 3rd U.S. Circuit Court of Appeals, by way of contrast, accepted the administration’s argument that the executive branch is entitled to decide when secrecy is necessary with regard to the conduct of all aspects of the war against terrorism, even those battles waged in an American court. Secrecy has also been a hallmark of the government’s surveillance activities under the USA Patriot Act, exemplified by Section 215′s gag order on custodians who are required to turn over records of their patrons or customers. The government resisted FOIA requests to disclose how those enforcement powers have been used. Yet that is information a court would need in order to evaluate whether that provision violates the First Amendment — as when it is applied to outraged librarians who are required to turn over the reading records of their patrons. Then the Justice Department reported to Congress that Section 215 had been used with respect to libraries only about 50 times, and often at the instigation of librarians themselves. Librarians have expressed doubt about that figure but, given the gag order, cannot share information to test its accuracy. Another current FOIA action asks a court to require the government to disclose its new, secret policy about local enforcement of immigration laws. No one doubts that the government often has a valid need for secrecy. In the deportation hearing context, for example, all of the judges agreed that if the government wanted to introduce sensitive evidence, the relevant portion of the hearing could be closed. But governmental decisions about the need for secrecy in cases involving detentions and surveillance, like the underlying decisions themselves, must be subject to meaningful judicial review. Only judges will factor in the public’s countervailing right to information about the government’s practices and policies in evaluating whether secrecy is really necessary in any particular case. It is inevitable that the government will overvalue its own need for secrecy, precisely because government actors are political. Of course the government will choose to publicize its successes, trumpeting the capture of a Jose Padilla. A cloak of secrecy can conceal sensitive information concerning an ongoing investigation; it can also conceal potentially embarrassing information about mistakes, failures or even exaggerated claims of success. The General Accounting Office recently analyzed reports that federal prosecutors had supplied enumerating how many anti-terrorism cases they were prosecuting and found that the numbers were grossly inflated. The Philadelphia Inquirer, following up on that story, reported that in one jurisdiction, 60 out of 62 cases listed as anti-terrorism prosecutions involved Middle Eastern students who had cheated on their English proficiency exams. In a recent speech, U.S. Supreme Court Justice Stephen Breyer raised his voice against the anti-judicial review arguments we have been hearing from the administration and even from some federal judges. Breyer reminded us that the Constitution still applies in times of real or metaphorical war, requiring the courts to review the government’s decisions about detentions, surveillance and secrecy. He predicted that the courts, including the Supreme Court, will increasingly play a role in determining where Constitutional boundaries lie. Judges, especially politically insulated federal judges, will then have to choose between deferring to the administration’s inclination to engage in unilateral, secret actions, and doing their jobs. In the current climate, where public impatience with dissent can lead to dissidents being excluded from events at the Baseball Hall of Fame or blacklisted by country music radio stations, we, as lawyers, will also have to choose whether to support judges like Damon Keith and Gladys Kessler, who actually do the apolitical job the Constitution allots to them. We need principled judges to ensure that politicians will share enough information so that we can hold them accountable. We also need judicial review, because even political accountability does not provide an adequate check when those whose rights are at risk find themselves in a politically powerless or unpopular minority. For most of us, the price of current security measures is the extra time we must now allow at the airport in case we need to take off our shoes. The people who are being questioned, detained, investigated, prevented from flying, charged with crimes, or deported are for the most part Arabs and Muslims. Can we really trust the political process to be scrupulous about the rights of Arabs and Muslims in the current climate? The evidence is not encouraging. The DOJ Inspector General report released in June confirmed that during the fall of 2001, federal agents detained innocent Arabs and Muslims for unreasonably long periods of time under deplorable conditions. James Madison once warned that accumulation of the legislative, executive and judicial powers in the same hands is “the very definition of tyranny.” The Bush administration, to its credit, has resolved its ambivalence by acknowledging the constitutional roles to be played by Congress and the courts on a number of occasions. But there is a lot that Congress, the courts and the public don’t know about what the president and his Department of Justice are doing, and we all need information to do our jobs. Democracy can indeed die behind closed doors, because our constitutional structure assumes an informed electorate that will watch over our politicians. The Constitution also provides that political majorities cannot always have the last word. If we want our constitutional structures to survive, we must play our own role in encouraging the administration to share both information and power, by making it politically costly for them to refuse to do so, and by encouraging the courts to provide a check instead of a blank check. Susan N. Herman is a professor at Brooklyn Law School. E-mail: [email protected] law.edu

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