BROOKE GLADSTONE: From WNYC in New York this is NPR's On the Media. Bob Garfield is away this week. I'm Brooke Gladstone. Since 9/11 there has been a tug of war between the Justice Department and civil liberties groups over releasing the names of roughly 1200 terrorism suspects held in secret detention. Each time a court decision demands release of the names, another overturns it on appeal. Most recently, Wednesday in the District of Columbia circuit. In a 2 to 1 decision, the majority said it must defer to the national security experts who say continued secrecy is essential. The dissenting judge said the government had offered only quote "vague, poorly-explained arguments for withholding the information, and he warned that the court's uncritical deference went some distance to gutting the Freedom of Information Act. Jane Kirtley is an attorney, a long time advocate for press freedom, and director of the Silha Center at the University of Minnesota. Jane, welcome to the show!

JANE KIRTLEY: Thank you. Pleasure to be here.

BROOKE GLADSTONE: So Jane, what was your reaction when you heard that the Court of Appeals upheld the decision to keep detainees' names secret?

JANE KIRTLEY:I feel very weary, because this is the most recent in a long string of adverse decisions that I think as the dissenting judge pointed out are gutting not just the Freedom of Information Act but I would say the whole presumption of openness that has set our system of government apart from every other government in the world for almost 200 years now. This is a really, really disturbing decision.

BROOKE GLADSTONE:But what do you make of the court's reasoning? The judges, they say, "are in an extremely poor position," and I'm quoting them, "to second guess the executive's judgment in the area of national security!"

JANE KIRTLEY:This has been sort of the fall back position of judges going back certainly the last 30 or 40 years, certainly during the Cold War to punt on this and say hey, you know, I don't work for the CIA. But if Congress had intended that the judiciary was to play no role in overseeing these kinds of federal executive branch agency determinations, then they would never have passed a Freedom of Information Act and they would never have set up a system whereby the court was supposed to review these statements by the federal government.

BROOKE GLADSTONE:But Jane, just for the record, what would be gained by making these names public? What is it that we need to know that we don't know?

JANE KIRTLEY:Well, I think one of the most telling things that we need to know was revealed in the inspector general's report that came out from the Justice Department. What we're learning now is that a lot of the representations that the federal government made to the court may not be entirely accurate. For example, they say that there isn't really a problem with the government not disclosing the identity of these detainees because the detainees have always been free to contact lawyers and to publicize their captivity themselves. The inspector general's report makes it clear that that's not exactly true. What we're really talking about is the ability of the public to oversee how our system of justice operates, particularly in a time of crisis, and I think that it's very important that the names of the individuals be available so that we in the press or the public in general can get in touch with those people, can track them, can find out what happens to them.

BROOKE GLADSTONE:Now I know the Washington Post and other media outlets have written friend of the court briefs supporting the suit to release the names, but this isn't the first challenge to civil liberties and access to information since 9/11, and the press hasn't weighed in very often!

JANE KIRTLEY:It's taken a very long time for the press to get involved in these cases, which is unusual, and as early as November of 2001 I know that there were media attorneys who were suggesting to their media clients that it would certainly be appropriate for the news media to initiate some of these actions, and for whatever reason, the news organizations for the most part said no, this is not the right time. We, we don't want to do it. Whether that was just a reflection of the whole concern of being labeled "unpatriotic" or whether it was a reasonable concern that bringing actions like this meant that there was a serious risk that you were going to get an adverse decision. Of course that's always a factor whenever you bring a case. My own view is there are some controversies and cases that are command performances, and when the news media don't come up to the plate, you really miss a dimension in the argument, and, and that dimension, I would argue, is a clear articulation of what the public interest is in all of this.

BROOKE GLADSTONE:So now there's still another layer of appeal, and if the D.C. Circuit Court decision is appealed to the Supreme Court, would you like the Supreme Court to take a look at it?

JANE KIRTLEY:I have very mixed feelings about the Court taking this case, because if they take it and if they affirm it, we will lose a lot of ground in the area of access law -- not just in the narrow area of the Freedom of Information Act but also because other elements of the opinion talked about whether there is, for example, a constitutional right to access to information like this. The D.C. Circuit said that there is not. If the Supreme Court affirms that ruling, we will not only lose ground in terms of access under the statutory right but also the more significant and, and fundamental constitutional right of the citizen to know what the government is up to.

BROOKE GLADSTONE: Okay. Jane Kirtley, thank you very much.

JANE KIRTLEY: Thank you.

BROOKE GLADSTONE: Jane Kirtley is director of the Silha Center at the University of Minnesota. [MUSIC]