from the FAS Project on Government Secrecy
Volume 2002, Issue No. 120
December 6, 2002


The President has wide latitude as commander in chief to designate someone like suspected "dirty bomber" Jose Padilla an enemy combatant and to detain him indefinitely without trial, even though Padilla is an American citizen captured on American soil, and even though Congress has not formally declared a state of war, a federal court ruled this week.

It is "simply wrong" to "assume that indefinite confinement of one not convicted of a crime is per se unconstitutional," wrote Judge Michael B. Mukasey of the Southern District of New York in his December 4 ruling.

On the other hand, contrary to the Bush Administration's position, Padilla must be permitted access to an attorney so that he may be able to challenge the grounds for his detention before a court of law, Judge Mukasey found.

"Padilla's need to consult with a lawyer to help him do what the [habeas corpus] statute permits him to do is obvious," Judge Mukasey wrote.

The legal issues involved are of such fundamental importance that they will be of interest to many. Judge Mukasey's 105 page ruling may be found here:


Defense Secretary Donald Rumsfeld deflected questions this week about U.S. policy concerning military operations such as the November 3 strike in Yemen that killed six reputed al Qaeda targets.

Will the U.S. undertake this kind of lethal action only with the permission of the target country? asked Pam Hess of UPI at a press briefing on December 3. When is killing preferred to capture and interrogation? And why was the Yemen mission a CIA operation rather than a DoD one?

"Those are very good questions," Secretary Rumsfeld genially replied.

However, he said, "I don't even concede there was a Yemen mission."

Doesn't the public have some kind of right to know? Sure, Rumsfeld said.

In fact, he noted, "I was one of the authors of the Freedom of Information Act. Yeah, back in the 1960s. I really was. I was one of the co-authors of that legislation."

"That's why it doesn't work," said an identified reporter.

See excerpts from the December 3 Pentagon press briefing here:


Within the letter of the law, the executive branch has considerable leeway in its interpretation of statutes such as the Freedom of Information Act. In the Bush Administration, all of that interpretive leeway, and then some, has been used to withhold information, including information that previously had been released to requesters.

A letter to the editor in the Washington Post today cites several examples of the growing resistance to disclosure. See "What Our Government is Hiding" by James F. Kerrigan here:

In a properly functioning system of checks and balances, it would be up to Congress to address such wholesale shifts in FOIA practices, and to enact appropriate remedies. But Republicans who were formerly skeptical of big government now favor minimal restraints on executive authority. So congressional action on this front appears increasingly unlikely.


President Bush visited the Islamic Center of Washington yesterday, where he removed his shoes, and spoke in honor of Eid al-Fitr, the celebration at the end of the Islamic month of Ramadan.

By doing so, he was conspicuously distancing himself from those on the political and religious right who are generally hostile to the Islamic world, while strengthening the kind of American pluralism that embraces Muslims as much as anyone else. It is the sort of thing Presidents are supposed to do, but it was nevertheless a good and decent gesture.

See "President Commemorates Eid al-Fitr" on the White House web site here:


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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