Following the September 11 attacks and the U.S. intervention in Afghanistan, the Administration quickly asserted sweeping powers to detain those it viewed as presenting security risks and to wrap its actions in a cloak of secrecy.
In the aftermath of the terrorist attacks, the government detained more than 1,000 people. Only 129, however, were charged with federal criminal offenses. Over 750 of the detainees were held for possible immigration law violations, while an undetermined number were held as "material witnesses," ostensibly in connection with grand jury proceedings of some kind. Immigration and material witness detainees receive fewer procedural rights and protections than those charged with criminal offenses, and the duration of their detention is more indeterminate. Even more disturbing that that, however, the government refused to make public details about the identities or even the number of detainees.
As a complement to its use of secret detentions of alleged immigration-law violators, the government also moved to impose secrecy on deportation proceedings. Deportation hearings are trial-type proceedings before federal immigration judges and have traditionally been open to the public. On September 21, 2001, however, Chief Immigration Judge Michael Creppy ordered that the public and the press be excluded from immigration hearings in cases of "special interest."
With the U.S. intervention in Afghanistan came a new form of secret detention: Taliban and al Qaeda fighters captured in Afghanistan and Pakistan were declared to be "unlawful enemy combatants" subject to indefinite detention with no legal rights to see an attorney and virtually no contact or communication with the outside world. Most of the detainees have been held at the U.S. naval base at Guantanamo Bay, Cuba, in part to prevent interference by the U.S. courts.
Indefinite incommunicado detention has not been reserved exclusively for foreign combatants. Two U.S. citizens have also been held, though they have been detained not at Guantanamo but in naval "brigs" on U.S. soil. One, Yaser Hamdi, was captured with Taliban forces in the war zone in Afghanistan; the other, Jose Padilla, was arrested in Chicago on a material witness warrant based on allegations that he had information about an al Qaeda plot to create and detonate a radiological device or "dirty bomb" in a terrorist attack on the U.S. The government has asserted the right to hold both Hamdi and Padilla indefinitely and prevent any contact between them and their lawyers—or even their families.
The government’s policy of using secret detentions as a key element of the "war on terrorism" has provoked a storm of litigation, with mixed and inconclusive results so far.
Federal district court judges in Manhattan have split over the issue of secret detention of "material witnesses." In United States v. Awadallah, Judge Shira Scheindlin held in April 2002 that the government has no authority to detain a material witness in connection with grand jury proceedings. But three months later, in a case entitled In re Application for a Material Witness Warrant, Judge Michael Mukasey disagreed: He rejected a material witness’s challenge to his detention and ordered that the details of the case be kept confidential. The government has appealed the Awadallah decision to the United States Court of Appeals for the Second Circuit, but the appeals court has not yet resolved the disagreement between the two lower court judges. Meanwhile, in another case in the same district court, also called In re Application for a Material Witness Warrant, involving a material witness who was wrongly detained because of misconduct by a government polygraph examiner, Judge Jed Rakoff rejected the government’s argument that the facts surrounding the erroneous detention should be kept secret.
A coalition of groups challenging the government’s refusal to release information regarding the number and identity of post-September 11 detainees filed suit in a federal district court in Washington, D.C. in the fall of 2001. In July 2002, Judge Gladys Kessler issued her ruling in Center for National Security Studies v. U.S. Department of Justice, rejecting the government’s claim that it was entitled to withhold information about the detentions under the Freedom of Information Act. The information, however, is still not public, because Judge Kessler promptly issued an order granting the government a stay so that it could appeal. The appeal was argued in November 2002, and the U.S. Court of Appeals for the District of Columbia Circuit is likely to rule before the summer of 2003.
Litigation over the secrecy of immigration hearings has moved faster. Two U.S. courts of appeals have considered the issue, reaching diametrically opposed results. In August 2002, in the case of Detroit Free Press v. Ashcroft, the U.S Court of Appeals for the Sixth Circuit in Cincinnati held that the right of public access to judicial proceedings extends to immigration hearings, and that the order closing deportation proceedings is unlawful. But in October 2002, in North Jersey Media Group v. Ashcroft, the Court of Appeals for the Third Circuit in Philadelphia upheld the policy. Such disagreements between federal appellate courts are normally resolved by the Supreme Court, and the media groups that brought the North Jersey case have filed a petition asking the Supreme Court to hear the case. The government’s response is due in May 2003, and the Court will likely decide before its term ends in late June whether to hear the case in it October 2003 term.
Challenges to detentions of alleged unlawful enemy combatants have largely been unsucessful. The U.S. Court of Appeals for the Ninth Circuit in California ruled in an opinion issued last July that a group of clergymen, lawyers and academics had no "standing" to seek habeas corpus relief for detainees at Guantanamo. A federal district court in Washington, D.C., also held in a July 2002 opinion that U.S. courts have no jurisdiction to entertain claims by detainees in Guantanamo because the naval base there is outside of U.S. territory, and the U.S. Court of Appeals for the D.C. Circuit affirmed in an opinion entitled Al Odah v. United States in March 2003.
The litigation arising out of the Hamdi and Padilla cases, which raise the most disturbing issues as to the government’s authority to hold American citizens incommunicado by labeling them "enemy combatants," has produced mixed results. In the Hamdi litigation, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, has produced three full opinions in the span of approximately seven months. In its first Hamdi opinion in June 2002, the court of appeals reversed a ruling of a federal district court in Norfolk that Hamdi was entitled to see a lawyer. The court remanded the case for further consideration by the district judge, who, after further consideration, again ruled Hamdi had a right to talk to a lawyer. In its second Hamdi opinion a month later, the court of appeals again reversed, and again directed the district judge to consider the issue some more. When the district court yet again held that Hamdi was entitled to proceed with his challenge to the lawfulness of his detention, the court of appeals had evidently had enough. In its third Hamdi opinion in January 2003, the court held that the government’s one-sided submission of the evidence supporting Hamdi’s detention (which consisted of a hearsay affidavit by a government official with no personal knowledge) was sufficient to sustain the lawfulness of Hamdi’s detention. Thus, in the court’s view, no purpose would be served by letting Hamdi communicate with a lawyer. Thus, Hamdi lost his case without ever getting to talk to his lawyer. (Hamdi has filed a petition for rehearing, so his case remains pending.)
Padilla’s case, filed in federal court in Manhattan, has proceeded more slowly and, so far, with different results. In December 2002, Judge Michael Mukasey ruled that although the government may be entitled to detain a citizen arrested on U.S. soil as an "enemy combatant," Padilla is entitled to challenge the government’s view that he is an enemy combatant and, hence, he may speak to a lawyer to assist him in responding to the government’s evidence. After the third ruling in the Hamdi case, the government asked Judge Mukasey to reconsider in light of the reasoning of the Hamdi opinion. But Judge Mukasey viewed Padilla’s case as significantly less open-and-shut than Hamdi’s, because Padilla, unlike Hamdi, was not captured on a foreign battlefield; thus, even if Hamdi wasn’t entitled to a lawyer, Padilla still needed one to deal with the more difficult facts of his case. Judge Mukasey therefore entered an order adhering to his earlier ruling. The government next moved for permission to appeal to the U.S. Court of Appeals for the Second Circuit, which Judge Mukasey granted in an order entered in April 2003.
The bottom line is that litigation challenging the Administration’s policy of secret detentions is continuing before the federal appellate courts. Given the disparate results that have so far emerged from the litigation process, it is likely that the Supreme Court will, sooner or later, take up a number of issues arising from the Administration’s actions.