Keeping the Door Open   

The government must justify the need for secret hearings.

The United States is called a nation of immigrants, yet many Americans are not concerned about the civil rights of those who are in this country illegally. Just 20 days after the terrorist attacks of September 11, Chief Immigration Judge Michael Creppy issued an order that certain deportation hearings, dubbed "special interest" cases, would be closed to the press and public. There wasn't a lot of criticism of the judge's actions.

Then in mid-December, Rabih Haddad, a native of Lebanon living in Ann Arbor, Michigan, who had overstayed his tourist visa and, incidentally, operated a charity that the government suspects funneled money to terrorist organizations, was hauled before Immigration Judge Elizabeth Hacker in Detroit. The press, the public and Haddad's family were not allowed to attend. Nor were they permitted to be present at subsequent hearings in January. The government refused to explain why the proceedings were closed, or even to confirm that they were taking place.

Several newspapers, including the Detroit Free Press, Detroit News and Metro Times, filed suit in federal district court. They argued that Creppy's directive violated their First Amendment right of access. The Supreme Court recognized a constitutional right to attend criminal trials in a 1980 decision, Richmond Newspapers Inc. vs. Virginia, requiring the government to make a compelling case to justify closure. The newspapers claimed a comparable right of access to deportation hearings.

The government countered that Richmond Newspapers applies only to trials and other judicial proceedings. Deportation hearings are administrative in nature, and, therefore, the judiciary should defer to the judgment of the executive branch. If U.S. Attorney General John Ashcroft says the proceedings need to be secret for national security reasons, the government lawyers argued, the courts should accept that without question.

Federal District Judge Nancy G. Edmunds didn't buy it, ruling in April that "secrecy only breeds suspicion." The government appealed, but in late August, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the district court. The unanimous opinion by Judge Damon J. Keith recognized that the executive branch has nearly unlimited authority to exclude and to deport noncitizens from the country. The only safeguard against impropriety, Keith wrote, "is the public, deputizing the press as the guardians of their liberty."

The panel observed that deportation hearings are similar to criminal trials. If the Richmond Newspapers standard applies, the government's actions must be strictly scrutinized to make sure they are consistent with the First Amendment. The two-prong test, formulated by Justice William Brennan, is known as "experience and logic."

The "experience" part asks whether the public traditionally has had the right to attend. Deportation proceedings, unlike exclusion hearings, historically have been open, Keith found.

Turning to the "logic" angle, Keith enumerated many ways that public access benefits the process. Openness acts as a check on the executive branch, provides an outlet for community concern that justice be done and enhances the perception of fairness and integrity. Keith then focused on the fatal flaw in Creppy's directive: It closes all "special interest" hearings without demonstrating the need to do so in every case. This is particularly troubling, Keith wrote, because the decision to classify a case as "special interest" itself takes place in secret and is not subject to any form of review.

Judges generally are reluctant to second-guess the intelligence community. As Keith acknowledged, agents "are certainly in a better position to understand the contours of the investigation and intelligence capabilities of terrorist organizations" than judges are.

But the 6th Circuit refused to kowtow to the executive branch's assertions that secrecy in all "special interest" cases was essential. Like federal Judge Gladys Kessler, who a few weeks earlier ruled that the government must release the names of those detained in the September 11 investigations, Keith was skeptical that closure could be justified by speculation that harm to national security might result from open proceedings. If that were so, he wrote, "The Government could operate in virtual secrecy in all matters, dealing even remotely, with 'national security,' resulting in a wholesale suspension of First Amendment rights."

The Bush administration has demonstrated that, left to its own devices, it might do just that. The 6th Circuit's ruling reminds us what a close call we've had.