Secret U.S. Deportation Hearings Ruled Illegal

The blanket closure of deportation hearings for individuals targeted in the massive post-Sept. 11 terrorism investigation is unconstitutional, a federal appeals court in Cincinnati ruled unanimously Monday.

The ruling is the fourth this year and the first by a federal appellate court striking down controversial government secrecy policies enacted in the aftermath of the terrorist attacks.

The Justice Department has closed hundreds of immigration hearings, even keeping the fact of the hearings secret, on the grounds that permitting them to be held publicly could compromise the nation’s security.

With hundreds of detainees already deported, the department said earlier this summer that only 74 noncitizens held after Sept. 11 remained in custody.

The 3-0 decision by the U.S. 6th Circuit Court of Appeals upheld a ruling earlier this year by a federal trial judge in Detroit, who said the Justice Department policy violated the 1st Amendment. In addition, federal trial judges in Newark, N.J., and Washington, D.C., have ruled against the Justice Department in related cases where the government was trying to keep secret information on arrests and investigations related to the terrorist attacks.

In each instance, the judges handling the case acknowledged that the government had legitimate concerns about terrorism but ruled that it had failed to justify its arguments that secrecy was necessary. All those rulings have been appealed.

In Monday’s decision, 6th Circuit Judge Damon J. Keith referred to the Sept. 11 attacks as “egregious, deplorable and despicable,” but he said some of the arguments advanced by Justice Department attorneys were “profoundly undemocratic.”

“The Executive Branch seeks to uproot people’s lives outside the public eye and behind a closed door,” Keith wrote.

“Democracies die behind closed doors. The 1st Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully and accurately in deportation proceedings. When the government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation,” Keith said.

Monday’s decision means that any individual held for an immigration-related problem in the 6th Circuit--which has jurisdiction over cases from Kentucky, Michigan, Ohio and Tennessee--is entitled to an open hearing unless an immigration judge determines that publicly airing information in the case might raise national security concerns, said Kary Moss, an American Civil Liberties Union attorney in Detroit.

The ruling arose in the case of Rabih Haddad, a Lebanese native who is a longtime resident of Ann Arbor, Mich., and the founder of the Global Relief Foundation, an Islamic charity that the government has been investigating since the attacks.

On Dec. 14, the government took Haddad, 41, into custody, raided the Brideview, Ill., headquarters of Global Relief and seized its assets.

After Haddad was detained, Elizabeth Hackett, an immigration judge in Detroit, held three closed hearings in his case, citing a Sept. 21 directive by Michael Creppy, the chief U.S. immigration judge.

The government asserts that Global Relief glorifies “martyrdom through jihad,” but the group denies that it has terrorist ties. Ashraf Nubani, the organization’s attorney, contends the group was targeted because of help it provided to Palestinians.

Global Relief sued to recover its assets, but the seizure was upheld by a federal judge, who acknowledged that he based his decision in part on secret evidence provided by the FBI. That ruling is being appealed.

Earlier this year, Haddad, several Michigan newspapers and Rep John Conyers Jr. (D-Mich.) sued Atty. Gen. John Ashcroft and other government officials seeking a ruling that Haddad’s deportation hearings be open.

The executive branch has virtually total power over immigration matters, and in this case the Justice Department asserted that this power should supersede any 1st Amendment right of access to deportation proceedings. The 6th Circuit disagreed.

In upholding U.S. District Judge Nancy G. Edmunds, the court ruled that Haddad and the public had a right to be present at his deportation hearings, unless the government made a strong showing justifying the need for secrecy.

In the case formally known as Detroit Free Press vs. Ashcroft, the court said the government had made no such showing in this case and offered “no persuasive argument as to why the government’s concerns cannot be addressed on a case-by-case basis.”

The 6th Circuit cited a long line of U.S. Supreme Court rulings saying that the public and the press have a right to attend court proceedings and that since “deportation proceedings bear a strong resemblance to judicial trials,” similar principles should apply. The court also noted that deportation hearings historically have been open.

Lee Gelernt, senior staff counsel for the ACLU’s immigrants rights project, applauded the ruling: “The court’s opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny.”

Barbara Comstock, the Justice Department’s public affairs director, said the department was pleased that the court had acknowledged that “the government has a compelling interest in preventing terrorism and closing immigration proceedings that could reveal information that allows ‘terrorist organizations to alter their pattern of activity to find the most effective means of evading detection.’ ”

But Comstock said the department “disagrees with the court’s conclusion that [the] department’s guidelines for determining which proceedings should be closed are too broad. 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.”

The Justice Department has the option of seeking review from a larger panel of 6th Circuit judges or appealing directly to the Supreme Court. All three judges who ruled against the government were appointed by Democratic presidents, upholding Edmunds, who was tapped for the bench by former President Bush.

The government is attempting to deport Haddad, as well as his wife and three of their four children (the fourth is a U.S. citizen), maintaining that they have overstayed their visas. Haddad is not contesting that fact but has now applied for political asylum, saying he might be persecuted if he was forced to return to Lebanon. Unlike many of the post-Sept. 11 detainees, Haddad’s identity and the date of his arrest have been public for months and he has an active support group, called the “Free Haddad Committee,” working on his behalf.

Justice Department attorneys contend that if the deportation hearings of “special interest detainees,” such as Haddad, are open, it “could lead to public identification of individuals associated with them,” as well as other investigative sources and potential witnesses.

The government also asserts that divulging the identity of detainees could deter such individuals from cooperating and impair the government’s ability to infiltrate terrorist organizations.

In addition, the Justice Department maintained that closing the hearings was justified to prevent the release of “bits and pieces of information that may appear innocuous in isolation,” but could be used by terrorist groups to help form a “bigger picture ... a mosaic” of the government’s terrorism investigation.

The 6th Circuit, while acknowledging that the government “has a compelling interest in preventing terrorism,” rejected these arguments, saying, “While the risk of ‘mosaic intelligence’ may exist, we do not believe speculation should form the basis for such a drastic restriction of the public’s 1st Amendment rights.”

Keith noted that in late April, after Edmunds ruled, the government had “admitted that there was no information disclosed in any of Haddad’s first three hearings that threatened “national security or the safety of the American people.”

Keith, a 1977 appointee of President Carter, expressed dismay that “there seems to be no limit to the government’s argument. The government could use its ‘mosaic intelligence’ argument as a justification to close any public hearing completely and categorically, including criminal proceedings.”

“The government,” Keith wrote, “could operate in virtual secrecy in all matters dealing, even remotely, with ‘national security,’ resulting in a wholesale suspension of 1st Amendment rights.” His opinion was joined by 6th Circuit Judge Martha C. Daughtrey and federal trial Judge James G. Carr of Cleveland, sitting on special assignment.

Times staff writer Richard Serrano contributed to this report.