Most Americans recognize that the attacks on America on Sept. 11 made the case for heightened vigilance about foreign terrorism on U.S. soil. But most Americans also believe -- we hope, anyway -- that even after 9/11 the Justice Department should not be given a blank check in seeking out potential terrorists.
An example of such exaggerated deference comes from the U.S. Court of Appeals for the District of Columbia. In a 2-1 vote this week, the court upheld the Bush Justice Department's decision to throw a blanket of secrecy over the arrest after Sept. 11 of hundreds of foreign nationals and a smaller number of U.S. citizens picked up as part of an anti-terrorist sweep. The foreigners were detained on immigration charges.
In his majority opinion, Judge David B. Sentelle mouthed the mantra that the courts should show deference to the executive branch when it comes to national security. But that didn't stop Judge Sentelle from interjecting his own view that since Sept. 11, "America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore."
True enough. But in the Cold War, anti-communism morphed into McCarthyism, and there is evidence -- from the Justice Department's own internal watchdog -- that a legitimate concern about foreign terrorism has led the federal government to detain foreigners indefinitely on the basis of tenuous connections to terrorism.
A report released this month by the Justice Department's inspector general concluded that after Sept. 11 foreigners were held for long periods of time, sometimes abused and not scrutinized to be sure they were who and what authorities thought they might be. Some relatives had no idea that their loved ones were being held.
In writing a blank check for the government, the appeals court showed no such awareness of government fallibility.
The better take on the deference issue came from dissenting Circuit Judge David S. Tatel, who reminded his colleagues that, even on national security matters, there is an American tradition of judicial scrutiny of executive branch decisions. He wrote: "By accepting the government's vague, poorly explained allegations and by filling in the gaps of the government's case with its own assumptions about facts absent from the record, the court has converted deference into acquiescence."
The final decision about whether secret arrests are legal under U.S. law and the Constitution may be made by the U.S. Supreme Court, which, so far, also has been overly deferential to the executive branch on post-Sept. 11 issues. For example, last month it refused to disturb a ruling by a federal appeals court in Philadelphia that the government could hold secret deportations for "special interest" aliens suspected of terrorist connections.
In ruling on secret arrests, the high court should treat the government's arguments with respect, as the court did when the Nixon administration unsuccessfully argued against publication of the Pentagon Papers three decades ago. But, as in the Pentagon Papers case, the court should reach its own conclusion about whether the administration is needlessly concealing information that should be public knowledge. Justice concealed is often justice denied.
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