Secret Trials, Nameless Defendents, Veiled Threats to Lawyers

For those of you hoping the federal courts will save you from the abuses of freedom foisted upon you by the Congress who brought us the USA Patriot Act and Bush, Rumsfeld, and Ashcroft, who brought us the “war on terror,” I have bad news to report. Yet another federal appeals court has slammed the door on public interest groups trying to stem the power of the government to detain, arrest, try, and deport people in secret.

Yes, the U.S. Court of Appeals for the District of Columbia said that all those nameless and faceless detainees who were rounded up by Ashcroft and his henchmen after 9/11, who were abused by the government as reported by the DOJ Inspector General last week, they all have the right to privacy! Now you and I don’t have the right to privacy, common ordinary people charged with anything from jaywalking to murder, no siree, we have no right to privacy. Anyone can walk into any courthouse and get our criminal records.

But so-called “terrorists” (I mean, that is why they were rounded up, wasn’t it?) hell, they have privacy! Apparently, that irony was lost on the two who masqueraded as judges. And, just in case you don’t buy the privacy argument, they said they must defer to the President in time of “war.” Yes, that perpetual war that will never end. That war on evil, that war on terror. Whatever Bush and Ashcroft want from the courts, they will get.

Judge Tatel wrote a stinging dissent, accusing his colleagues (one appointed by Reagan, on by George the First) of totally abdicating their role as protectors of the law. What, he said? You say the Freedom of Information Act falls when the President claims national seucirty? And you are not even going to look at the claim and see if it is legitimate?

Judge Tatel wrote:

“The court’s uncritical deference to the government’s vague, poorly explained arguments for withholding broad categories of information about the detainees, as well as its willingness to fill in the factual and logical gaps in the government’s case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies. For all its concern about the separation-of-powers principles at issue in this case, the court violates those principles by essentially abdicating its responsibility to apply the law as Congress wrote it.”

Judge Tatel also attacked the court for refusing to release the name of the attorneys involved in the cases. The majority reasoned that the attorneys might be embarrased by being associated with representing people who were detained. That is a not so subtle threat and reminder to attorneys that they will be held to be the terrorist that their clients are charged with being, if they dare take these cases. The proof of that is in the government’s prosecution of Lynne Stewart.

Since there is now only one branch of government, Congress ought to disband the courts and send the judges packing. If you think this decision is bad, wait until those new Bush appointees don their robes. Dissents will be even rarer than they are today–all part of the Bush-Rove plan. Yesterday the Congress, today the Courts, tomorrow the Constitution.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch under the auspices of The City Pages. She can be reached at: