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Court Backs Open Deportation Hearings in
Terror Cases
Tue Aug 27, 3:27 PM ET
By ADAM LIPTAK The New York Times
The federal appeals court in Cincinnati declared yesterday that
the Bush administration acted unlawfully in holding hundreds of
deportation hearings in secret based only on the government's
assertion that the people involved may have links to terrorism.
The decision, which was laced with stinging language questioning
the administration's commitment to an open democracy, is the first
major appellate ruling on the government's legal tactics concerning
Sept. 11.
"Democracies die behind closed doors," wrote Judge Damon J. Keith
for the unanimous three-judge panel of the United States Court of
Appeals ( news
- web
sites) for the Sixth Circuit. The Bush administration has
sought, the panel said, to place its actions "beyond public
scrutiny."
"When the government begins closing doors," the panel continued,
"it selectively controls information rightfully belonging to the
people. Selective information is misinformation."
Barbara Comstock, a spokeswoman for the Justice Department ( news
- web
sites), said the government had not decided whether to
appeal.
"The Justice Department has an obligation to exercise all
available options to disrupt and prevent terrorism within the bounds
of the Constitution, and will review today's opinion in light of our
duty to protect the American people," Ms. Comstock said in a
statement.
The case was brought by four Michigan newspapers and
Representative John Conyers Jr., Democrat of Michigan. They sought
to attend deportation hearings concerning Rabih Haddad, a Muslim
clergyman who had overstayed his tourist visa.
Mr. Haddad, a native of Lebanon and a resident of Ann Arbor,
Mich., is the founder of the Global Relief Foundation, a Muslim
charity whose assets were frozen after it came under federal
scrutiny.
In April, a federal district judge in Detroit rejected the
government's argument that it should be allowed to decide which
hearings must be closed without presenting arguments and evidence to
immigration judges. The judge, Nancy G. Edmunds, ruled that future
hearings in Mr. Haddad's case must be open, and the government has
released transcripts of the sealed hearings. Judge Edmunds was
appointed by the first President Bush ( news
- web
sites).
In similar decisions that have yet to be tested on appeal, trial
court judges in Newark and Washington have also recently ordered the
government to open hearings and release information about people
held in connection with terrorism investigations.
According to information provided by the Justice Department last
month, 752 people were detained on immigration violations in
connection with Sept. 11 investigations. As of late June, 81
remained in custody. The rest were released or deported.
The appeals court in Cincinnati affirmed Judge Edmunds's decision
with unusual speed, issuing its decision fewer than three weeks
after it heard oral arguments.
"The panel was offended by the government's attempt to hide
behind national security to strip us of our freedoms," said Herschel
P. Fink, who represented The Detroit Free Press in the case.
Press lawyers were unrestrained in their enthusiasm for the
decision.
"I want to weep it's so good," said Lucy Dalglish, the executive
director of the Reporters Committee for Freedom of the Press.
Judge Keith, who was appointed to the appeals court by President
Jimmy Carter, has a history of strong opinions on civil liberties.
In 1971, as a district judge, he rejected an argument by Attorney
General John Mitchell that wiretaps obtained without search warrants
could sometimes be justified in the name of national security.
The appeals court panel also included Martha Craig Daughtrey,
also of the United States Court of Appeals for the Sixth Circuit,
and James G. Carr, a federal trial court judge from Toledo, Ohio,
sitting as a visiting appellate judge. Judges Daughtrey and Carr
were both appointed by President Bill Clinton.
A broader case on the same issues will be heard by the federal
appeals court in Philadelphia next month. In that case, a Newark
judge ordered that all deportations nationwide be opened to public
scrutiny unless the government offered proof, case by case, of why
secrecy was needed.
The Justice Department may be awaiting the outcome of that case
before deciding whether to appeal in the Haddad case.
Yesterday's decision applied directly only to Mr. Haddad's case.
Its reasoning, though, is binding on courts in Kentucky, Michigan,
Ohio and Tennessee and may be cited as precedent elsewhere.
The recent judicial activity is part of a historical pattern,
said Lee Levine, a Washington lawyer and the author of a treatise on
access to government proceedings.
"Some momentous event happens," Mr. Levine said. "There follows a
governmentwide tendency to defer to the executive branch. Then at
some point when a calm distance has been achieved from the
precipitating event, slowly but surely the judiciary rises from its
slumber and says, `We've forgotten what we're fighting for.' "
The decision rejected administration arguments that tried to
distinguish immigration hearings, which are conducted within the
executive branch, from trials conducted by the judicial branch.
The court held that deportation hearings look and feel like
trials. They are, Judge Keith wrote, "exceedingly formal and
adversarial."
Indeed, said Lee Gelernt, a lawyer at the American Civil
Liberties Union ( news
- web
sites) who represented some of the plaintiffs, "there is perhaps
even greater reason to have public scrutiny of deportation
hearings."
"There is no jury," Mr. Gelernt added, "and the defendants will
often not have counsel. They're facing trained prosecutors, and
they're often very literally sitting there all by themselves."
The appeals court decision was also notable, experts said, for a
warm embrace of news organizations not seen in most courts since the
Vietnam and Watergate eras. The public, the court wrote, has
deputized the press "as the guardians of their liberty."
The panel emphasized that the government might well be able to
meet its burden of persuading immigration judges case by case that
given proceedings may be closed.
The panel wrote that the government has already outlined
"compelling interests sufficient to justify closure."
Among the rationales for closing cited in government affidavits
were physical danger and embarrassment to the detainees and people
associated with them, along with the possibility of compromising
investigations.
Ms. Comstock said the government was pleased with this aspect of
the decision.
"As the Sixth Circuit Court of Appeals recognized today," she
said, "the government has a compelling interest in preventing
terrorism and closing immigration proceedings that could reveal
information" that might help terrorists avoid detection.
The panel held that the general interest in preventing terrorism
must be argued to and accepted by immigration judges in the context
of particular cases. The judge in Mr. Haddad's case made no such
findings. Rather, she relied on a blanket directive issued by the
chief immigration judge, Michael J. Creppy. It instructed
immigration judges to keep so-called special-interest cases
secret.
"Each of these cases is to be heard separately from all other
cases on the docket," Judge Creppy wrote. "The courtroom must be
closed for these cases no visitors, no family, and no press."
"This restriction," he continued, "includes confirming or denying
whether such a case is on the docket."
The appeals court panel said the directive violated the
Constitution.
"The task of designating a case special interest is performed in
secret, without any established standards or procedures, and the
process is, thus, not subject to any sort of review," Judge Keith
wrote. "A government operating in the shadow of secrecy stands in
complete opposition to the society envisioned by the framers of our
Constitution."
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