Supreme Court Misses Important Opportunity to Review Blanket Secrecy Surrounding 9/11 Detentions

WASHINGTON, DC - The Lawyers Committee for Human Rights expressed regret at the Supreme Court's January 12 decision not to review a federal appeals court ruling upholding the government’s power to withhold basic information about those detained as part of security sweeps after September 11. In deciding not to hear the case, the Supreme Court ignored the persuasive argument of dissenting federal appeals court judge David Tatel, who condemned the court majority’s “uncritical deference to the government’s vague, poorly explained arguments for withholding broad categories of information.”

“We believe Judge Tatel was right in insisting that the executive should have to show specifically how releasing the requested information would have affected national security,” said Eric Biel, a Lawyers Committee attorney. “The Supreme Court’s decision represents a missed opportunity to restore balance among the branches of government, and ensure that the courts resume their historic role in checking broad executive branch assertions of secrecy,” Biel added.

The Supreme Court’s decision comes amidst growing concerns about overly broad Defense Department claims of secrecy. The Department announced last month a new policy restricting the information that the Defense Department’s Inspector General can post on its public web site. The restrictions now extend beyond classified and “official use” information to three new, open-ended categories, including “information not specifically approved for public release” and “information of questionable value to the general public.”

“When an executive branch department goes well beyond classification for national security reasons and decides to withhold all sorts of information based on its own concept of the ‘value’ to the public, it turns our tradition of open government on its head,” said Biel. “Subject to reasonable and specific grounds for keeping secret information critical to the nation’s security, government should let the public decide what information is of value in a democracy.”

As the Lawyers Committee documented in its report, Assessing the New Normal: Liberty and Security for the Post-September 11 United States, the past two-plus years have witnessed a significant increase in secrecy that has made it harder for Congress, the courts, and the American people to remain informed about executive branch actions. The report analyzes how, in measures from expanded classification to undermining the Freedom of Information Act, the Administration has established a ‘new normal’ that makes secrecy the rule in executive branch conduct, and disclosure the exception.

This pattern of increased secrecy is evident not only in the new Pentagon policy, but also in current government efforts to keep under seal the case of a Florida resident detained after the September 11 attacks. That case, M.K.B. v. Warden, is currently on appeal to the U.S. Supreme Court, and the Lawyers Committee applauds recent efforts by several media organizations to intervene in favor of the public’s right to know.