Coast Guard & DHS sued over secret arrests

Yale Law School’s Media Freedom and Information Access Clinic (MFIA) filed a lawsuit in the Eastern District of New York on behalf of journalist Seth Freed Wessler, a reporting fellow with Type Investigations, to establish the public’s First Amendment right of access to basic information about people arrested and detained by the government.

The Coast Guard, operating under the Department of Homeland Security (DHS), regularly interdicts vessels on the high seas for trafficking drugs, arrests all persons on board, and detains them on ships until they are eventually transported to shore and charged with federal crimes.

According to the complaint filed by MFIA, the names of detainees are not disclosed to the public until their arrival in the U.S., which is often weeks after their initial arrest at sea.  

Plaintiff Seth Freed Wessler has investigated these Coast Guard practices for the New York Times Magazine, The Canadian Broadcasting Corporation, and Type Investigations.

Wessler has documented instances in which the Coast Guard shackled detainees to the deck of ocean going vessels for weeks or months. He reports that the detainees are nearly always held incommunicado. 

In the course of his reporting, Wessler asked the Coast Guard for basic information about the people it arrested and detained, such as their names and their location. The Coast Guard refused to provide him any details about those arrested.

“The Coast Guard’s unwillingness to provide me with this basic information was a surprise: as a reporter focused on the criminal justice system, I’ve come to expect transparency about who is detained,” Wessler said. “At any given time, the Coast Guard may be detaining dozens of people aboard its ships, but unlike other arrests and detentions, these people are held in secret. Even their families are left in the dark about what has happened to them.”

Wessler’s lawsuit asserts that the Coast Guard’s practices violate the public’s First Amendment right of access to arrest information, including the names of detainees and the dates of their arrests.

The First Amendment right of access ensures that the public has access to certain government records and proceedings that have historically been open and for which access is in the public interest, such as trials.  

“At its core, this case is about whether or not the constitution permits the government to secretly and even indefinitely detain any person for any reason,” stated clinic student Sarah Levine. “We believe that the First Amendment protects the public’s right to know who the government has in custody.”

The lawsuit argues that the secrecy of these Coast Guard arrests and detentions contravenes the longstanding practice across U.S. law enforcement jurisdictions of making arrest and detention records public and prevents public accountability and oversight.

According to the complaint, “[p]ublic access to arrest information further ensures fairness in the criminal justice process by deterring law enforcement officials from mistreating arrestees or unjustly prolonging their detentions.”

According to law student David Murdter, there are important practical reasons as to why the Coast Guard and Department of Homeland Security are obligated under the First Amendment to disclose the names of the persons they arrest and detain.

“As just one example, with access to information about arrestees, defense counsel could anticipate the arrival of defendants in federal court and monitor for violations of their legal rights, such as their Miranda rights and the right to a speedy trial,” said Murdter.

“The conditions of confinement for suspects held aboard Coast Guard cutters, and the extended detention before they are transported to the United States, raises troubling questions about compliance with human rights and legal norms,” added Wessler.

Levine and Murdter worked on this matter under the supervision of clinical lecturer and MFIA Co-Director David Schulz ’78 and clinical lecturers John Langford ’14 and Francesca Procaccini. 

The Yale Law School Media Freedom and Information Access Clinic is a legal services clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. The clinic is an initiative of the Information Society Project at Yale Law School and is funded by the Floyd Abrams Institute for Freedom of Expression.


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