Judge David Sentelle wrote in the majority opinion that the need for deference to Washingtons anti-terrorism campaign outweighs the dangers of the secret arrest and jailing of hundreds of individuals. It is abundantly clear that the governments top counterterrorism officials are well suited to make this predictive judgment, he stated, because America faces an enemy just as real as its former cold war foes.
Most of those detained were charged, after their arrest, with minor immigration infractions, such as remaining in the country with an expired visa.
The government argued that release of any information about those detained or their lawyers would hamper their ongoing investigations and endanger the public safety by allegedly increasing the chances of attacks on those detained. Feigning concern for the rights of those jailed secretly by the government, Justice Department lawyers also argued that by keeping secret the names and whereabouts of the prisoners they were protecting their privacy.
The only Democratic Party-appointed judge on the appeals court, David Tatel, agreed with the court majority view that Washington was acting properly by withholding some of the information about those who had been jailed. No one can doubt that uniquely compelling governmental interests are at stake in its anti-terrorism roundups, he wrote in his dissenting opinion.
Tatel opposed the Republican judges uncritical deference to government arguments. He stated that a blanket acceptance of the governments position eviscerates the Freedom of Information Act under which the case had been brought. He favored the withholding of the names and places of arrest of some of the detainees.
The appeals court decision follows a U.S. government announcement in early June that it plans to deport more than 13,000 men, mostly Arab and Muslim, who had complied with a federal order to submit to special registration proceedings.
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