Unnecessary Evil

Last week Department of Justice Inspector General Glenn Fine issued a 198-page report documenting a variety of abuses committed against illegal immigrants who were jailed during some initial sweeps after September 11. The report provides a rare public glimpse into the largely secret domestic war against terrorism. Justice Department spokeswoman Barbara Comstock reacted to the report by saying, "We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks." And Attorney General John Ashcroft testified that "we make no apologies" for holding suspects as long as necessary to determine whether they have links to terrorism.

Actually, apologies are very much in order.

The abuses of detainees could have been avoided -- and at no cost to the nation's security. They occurred because the Bush administration has decided to carry out its war against terrorism largely in secret and with as little intrusion as possible from the other branches of government. That disdain for oversight and accountability poses risks to a broad range of American values and principles that extend far beyond the injustices experienced by the detainees. And the report demonstrates that the administration's "just trust us" approach actually weakens -- rather than strengthens -- the government's ability to effectively fight terrorism.

Of the 762 illegal aliens who were rounded up and detained in connection with the FBI's 9-11 investigation, only Zacarias Moussaoui (who was already in custody before the attacks) was ultimately charged with terrorism. The inspector general's report found that many of those detainees were physically and verbally abused, impeded from retaining and contacting lawyers, treated as criminals accused of capital offenses and held in custody months after the government had established that they did not pose a threat.

How could those transgressions have occurred? Mainly because no one -- not reporters, not judges, not members of Congress, not civil-liberties groups and not lawyers for the detainees -- had any idea what was going on. Six days after 9-11, Immigration and Naturalization Service Chief Administrative Judge Michael Creppy issued a memorandum instructing immigration judges and administrators to close to the public all hearings related to the detainees and to keep information related to those cases secret. Even the names of those incarcerated were not released -- a decision Ashcroft claimed was intended to protect their privacy. (In that case, why not just ask their permission?)

The unprecedented policy of blanket secrecy kept the press, legislators and advocacy groups in the dark, which in turn made it easier for detention-center officials to impede the incarcerated aliens' access to lawyers. One example in the inspector general's report described a unit counselor who, when making weekly rounds, would ask detainees, "Are you OK?" An affirmative response resulted in the loss of an opportunity to make a legal phone call that week.

The report repeatedly points out that the government recognized quickly that the majority of detainees were unconnected to terrorism and posed no danger. But even after "final orders for removal" were issued to return those illegal aliens to their home countries, many remained in custody well past the statutory 90-day limit that applies in most cases. The purported reason: The FBI had established a new policy of not returning any detainees to their countries until it issued a "final clearance" -- and backlogs were holding that process up. From the standpoint of fighting terrorism, it might have been more effective for FBI agents to focus their energies on activities other than continuing to investigate individuals who had already been deemed harmless. That's the sort of inefficiency that good oversight might have rooted out.

The administration has consistently argued that secrecy is essential to security. It has used that argument not only with reference to the detainees but also in connection to the USA Patriot Act, the new Department of Homeland Security, the results of scientific research, the retraction of public information about "critical infrastructure," the activities of certain federal departments, and the incommunicado imprisonment of Jose Padilla, Yusef Hamdi and captives at Guantanamo Bay. As a result, the public has little way of assessing whether the administration's actions are indeed making us safer; we also have no way of evaluating whether the nation's fundamental values and principles are being compromised in the process.

Some secrecy is unquestionably necessary in the fight against terrorism, but not at the level the Bush administration has demanded (and gotten). In issuing his report, the inspector general has shed some much-needed light on how secrecy has been abused since 9-11 -- and made a compelling case that the public gets kept in the dark at its own peril.

Greg Anrig Jr. is the vice president of programs at The Century Foundation and a co-editor of the soon-to-be-published The War on Our Freedoms: Civil Liberties in an Age of Terrorism.

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