OUR SECRET GOVERNMENT

By William Fisher

From Washington this week came more evidence that the Bush Administration has no plans to change its excessive secrecy policies. The U.S Commission on Civil Rights (USCCR) removed more than 20 significant documents from its website, and the Justice Department (DOJ) told an advocacy group it will cost them nearly $400,000 to obtain records they requested about immigrants detained after the 9/11 terrorist attacks.

Documents removed from the USCCR’s website include a number of reports that could embarrass the Bush Administration. For example: Briefing on Boundaries of Justice: Immigration Policies Post-September 11; Briefing on Civil Rights Issues Facing Muslims and Arab Americans in Ohio, Minnesota, Indiana, Wisconsin, and North Dakota Post-September 11; Briefing on the Consequences of Government Race Data Collection Bans on Civil Rights; and The Supreme Court Revisits Affirmative Action.

A majority of commissioners on the USCCR voted along party lines to remove the documents. The USCCR is a government agency. Of its seven commissioners, four are chosen by the President (currently Republicans) and three (currently two Democrats and one Independent) by Congress. Its mandate is to investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin; study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice; appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice; and serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws.

In another secrecy-related development, an advocacy group, People for the American Way (PAW) requested under the Freedom of Information Act (FOIA), all documents related to the decision to seal the records of immigrants detained in the wake of the 9/11 terrorist attacks. PAW believes the unusually large price tag is DOJ’s latest move in an ongoing struggle to withhold the information.

The civil rights organization filed the FOIA request more than a year ago. The Justice Department immediately denied the request on the grounds of privacy and then denied the organization’s appeal. PAW, unsatisfied with the Justice Department’s claims, filed a lawsuit in August 2004 seeking the records.

Two days before the deadline for arguing why the lawsuit should be summarily denied, the Justice Department reported that it had changed its position and would search for the requested records. PAW was told that an initial canvass of U.S. Attorneys’ offices led to an estimated search time of 13,314 hours. at $28 an hour, would make the total search fee approximately $373,000.

PAW requested the information so it could produce a public report about the
government’s efforts to use secrecy against hundreds of unidentified detainees
who were arrested and held for months without criminal charges following the
9/11 attacks.

Between 9/11 and the present time, some 5,000 people – mostly Arabs, other Muslims, and South Asians, have been arrested by the Federal Bureau of Investigation (FBI), part of the DOJ. There have been no terrorist-related convictions. Most of the detainees were held in a prison system operated by the former Immigration and Naturalization Service, now part of the Department of Homeland Security (DHS). Many were held without charge or access to family or attorneys for months. Many were deported for typically minor visa violations, and some were returned to countries where they would likely be arrested and imprisoned by local security authorities. The DOJ has consistently refused to release the names of the detainees.

One of the architects of the post 9/11 detention policy was President Bush’s lawyer, Alberto Gonzales, who was recently confirmed to be the next Attorney General. Another former DOJ official, Judge Michael Chertoff, is thought to have been a key player in designing the policy; he has been nominated by President Bush to be the next heads of the Department of Homeland Security, which includes the immigration prison system.

PAW said it hopes to publish a report about government secrecy efforts against hundreds of unidentified detainees.

The organization’s president, Ralph G. Neas, said the DOJ’s fee demand is “outrageous, and another in a series of strategies to deny access to public information. Apparently, they’ve taken the ‘free’ out of ‘Freedom of Information.’ If you want to learn about secret trials carried out by your government with your money, you’re going to need deep pockets,” said Neas.

“It’s clear that this is just the latest tactic in the Justice Department’s ongoing effort to hide information from the American public, particularly about ‘secret’ legal proceedings for immigrants held for months and sometimes years in the wake of the terrorist attacks,” said Neas.

In an editorial, The New York Times said the DOJ was charging a “huge fee (that) is well beyond established criteria and amounts to an insult to intent of Freedom of Information Act”. The FOIA was signed in 1968 by President Lyndon B. Johnson, and was intended to give citizens more access to government documents.

PAW’s request was prompted by the secret case of a Deerfield Beach, Fla., resident, Mohamed Kamel Bellahouel, an Algerian native and one of hundreds of men of Middle East origin detained without criminal charge by federal agents following the 9/11 terrorist attacks.

Bellahouel, a waiter, was detained by FBI agents for overstaying his student visa after they learned he'd probably served food to some of the hijackers and may have been seen going into a movie theater with a hijacker.

He spent five months in custody and was called to testify before the grand jury that indicted accused Sept. 11 co-conspirator Zacarias Moussaoui. He was released in March 2002, without any criminal charge. But his habeas case proceeded secretly for another year until it was mistakenly placed on the docket at the appellate court in Miami.

While he was still in custody, in January 2002, Bellahouel filed a habeas corpus case in The Southern District of Florida. The case proceeded in complete secrecy on orders of U.S. District Judge Paul C. Huck. A clerk's error at the 11th U.S. Circuit Court of Appeals in March 2003 briefly let Bellahouel's name surface, allowing a newspaper to discover his case. Now, Bellahouel's name appears nowhere on the Southern District's public docket.

Last year, PAW joined a coalition formed by the Reporters Committee for Freedom of the Press, including 23 media, law and public interest organizations -- including the New York Times and American Lawyer Media, the Daily Business Review's parent, that unsuccessfully sought to formally intervene in Bellahouel's heavily censored case, which was then before the Supreme Court for possible review. The Daily Business Review is the newspaper that discovered the error made by the court clerk.