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A Times Editorial
An appellate's court rejection of closed immigration hearings for detainees offers hope that the courts will keep our administration in check.
© St. Petersburg Times, published September 5, 2002
There was no mincing of words by the federal appeals court in Cincinnati. Called upon to determine the constitutionality of the government's blanket order holding immigration hearings of post-Sept. 11 detainees in secret, the court said: "A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution."
The case of Detroit Free Press vs. Ashcroft is the first time one of the administration's antiterrorism tactics has been held unconstitutional by a federal appeals court. The strong language used by the 6th U.S. Circuit Court of Appeals in rejecting the administration's policy of closed hearings gives us hope that the courts will do their part to strike the proper balance between security and individual rights.
The case arose after Rabih Haddad was picked up and detained for overstaying his tourist visa. Haddad is co-founder of the Global Relief Foundation, an Islamic charity suspected by the government of funding terrorist activities. Like that of every detainee rounded up in the terrorist investigation, Haddad's deportation hearing was ordered closed by Chief Immigration Judge Michael Creppy.
The government has labeled the Muslim and Arab men it picked up in the aftermath of the terrorist attacks as people of "special interest." Even when their immigration hearings involved no classified information, the administration has invoked national security to keep the proceedings secret, with no family or reporters allowed in the room.
The crux of the administration's assertion is that terrorist cells could obtain "mosaic intelligence" if the hearings were open. There are pieces of information that aren't sensitive by themselves but taken together could compromise investigative strategies. Yet, the detainees are allowed to communicate with outsiders, and if they have counsel, their attorney may also speak to the public. There is nothing air-tight about this secrecy.
Seeing the serious flaws in the government's national security claims, federal district courts in Michigan and New Jersey have ruled that the hearings must be presumptively open. Now the 6th Circuit has agreed with the lower courts.
Circuit Judge Damon Keith, writing for a unanimous court, showed little patience with the Justice Department's argument that it had exclusive authority to decide whether immigration hearings will be open or closed since the immigration courts are administrative, not judicial. "Deportation hearings 'walk, talk, and squawk' very much like a judicial proceeding," Keith wrote. Public access to any sort of adjudication is vital to a free society, Keith said, "as a check on the actions of the Executive by assuring us that proceedings are conducted fairly and properly.
"When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation," Keith wrote.
The court did not foreclose the opportunity for the administration to close specific hearings for individual deportees, but it would have to make a credible showing of the need for secrecy in each case.
The administration's antiterrorism tactics are finally getting the judicial scrutiny they deserve. In addition to secret deportation hearings, there are cases moving through the courts on whether the identities of detainees can be kept from the public, whether Americans can be held by the executive branch without charge or access to a lawyer, and whether wiretaps obtained without probable cause can be routinely used in criminal prosecutions.
With Congress unwilling to challenge the administration on these issues, the judiciary is the only serious check on Attorney General John Ashcroft's campaign to rewrite the Constitution.