Before 9/11, mass secret arrests were unprecedented in American history. Open proceedings have always served as the foundation of our legal system because, “[o]penness is necessary for the public to maintain confidence in the value and soundness of the government's actions, as secrecy only breeds suspicion.”
But in the days and weeks immediately following the 9/11 attacks, the FBI and the Justice Department secretly arrested hundreds of individuals, virtually all of whom were Arab or Muslim. Even though the government admitted at the time that in virtually all instances it had no evidence of terrorist activity by these individuals, it jailed them on unrelated charges, or without any charges at all, detained them in conditions previously reserved for convicted violent offenders, and closed their immigration hearings in more than 600 cases. Many individuals were denied access to a lawyer, held incommunicado for days and weeks, and physically and mentally abused in jail.
CNSS led the opposition to the dragnet searches and arrests of innocent Arab and Muslim individuals. We filed the first post 9/11 lawsuit challenging the government's counterterrorism policies: Center for National Security Studies v. Department of Justice, filed December 10, 2001. Many Members of Congress also urged the government to release information about the detainees as did many newspaper editorials.
In August, 2002, less than a year after the attacks, federal Judge Gladys Kessler in the District of Columbia issued a courageous decision requiring release of the information (Center for National Security Studies v. United States Department of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002). In an opinion reported on front pages across the country, she wrote that: “Secret arrests are 'a concept odious to a democratic society,’ . . . and profoundly antithetical to the bedrock values that characterize a free and open one such as ours. Plaintiffs in this case seek to vindicate that fundamental Principle.” Making the crucial point later echoed by the Supreme Court in a military detainee case, she explained: “Difficult times such as these have always tested our fidelity to the core democratic values of openness, government accountability, and the rule of law. The Court fully understands and appreciates that the first priority of the executive branch in a time of crisis is to ensure the physical security of its citizens. By the same token, the first priority of the judicial branch must be to ensure that our Government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship.”
Although Judge Kessler's decision was eventually overturned on appeal in a 2 to 1 ruling, the Congress, the public and the independent Inspector General were spurred to condemnation of the arrests.
The Justice Department’s independent Inspector General investigated and confirmed that individuals were held without legal authority, deprived of their right to a lawyer, and abused by guards and other inmates.
In the face of public outrage and judicial questioning, the use of mass secret arrests was abandoned by the government as a counterterrorism tactic.
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