Secret Deportation Hearings Are Upheld

The government may legally hold secret deportation hearings for individuals targeted in the sweeping post-Sept. 11 terrorism investigation, a divided federal appeals court in Philadelphia ruled Tuesday.

The decision is the first by a federal appellate court upholding controversial government secrecy policies enacted in the aftermath of the terrorist attacks. It reversed the ruling of U.S. District Judge John W. Bissell in Newark, N.J., who held in May that the government policy violated the 1st Amendment right of the press and the public to attend such hearings.

The U.S. 3rd Circuit Court of Appeals ruled that the government has the right to close the hearings on grounds of “national security,” saying it trumps the public’s 1st Amendment right of access.

“Since the primary national policy must be self-preservation, it seems elementary that, to the extent open deportation hearings might impair national security,” it is logical for the government to close the hearings, Judge Edward R. Becker wrote for the majority.

The 2-1 decision is at odds with an Aug. 26 decision by a federal appeals court in Cincinnati, making it likely that the U.S. Supreme Court will review the thorny issue. These are the only two cases that have been filed on this issue, although there are other pending legal challenges to government policies adopted after the terrorist attacks.

For now, the 3rd Circuit ruling applies only in its jurisdiction--New Jersey, Pennsylvania, Delaware and the Virgin Islands, just as the 6th Circuit decision applies only in Michigan, Ohio, Kentucky and Tennessee.

Judge Anthony J. Scirica dissented, saying the government had not justified a blanket policy of closure. Scirica said that while there might be valid reasons to close some hearings, federal immigration judges were capable of deciding--”with substantial deference to national security”--which ones to close on a case-by-case basis.

Tuesday’s decision “is not just a victory for the Justice Department, but for every American relying on the government to take every legal step possible to protect our nation from acts of terror while preserving constitutional liberties,” said Assistant Atty. Gen. Robert D. McCallum Jr. Justice Department regulations dating from 1964, he added, have expressly allowed “select deportation hearings to be closed to protect public interest, and this authority is an important constitutional tool in this time of war.”

American Civil Liberties Union attorney Lee Gelernt, who argued the case on behalf of three New Jersey newspapers seeking access to closed deportation hearings, said he was disappointed and might ask for a rehearing from a larger panel of 3rd Circuit judges or a review by the U.S. Supreme Court.

“The decision sanctions locking up people based on secret hearings,” Gelernt said. “That is profoundly at odds with basic principles of fairness.”

In the aftermath of the terrorist attacks, the Justice Department launched a massive probe, taking more than 1,200 noncitizens into custody. The vast majority were never charged with any act of terrorism, but many had violated immigration laws, the agency said.

Of the 763 taken into custody on immigration charges, only 35 are still being held for that reason, Jorge Martinez, a spokesman for the Justice Department, said Tuesday. Martinez added that 446 had been deported, 242 had been released and 40 had been transferred to other authorities.

The Bergen Record, the Herald News of West Paterson and the New Jersey Law Journal sued in federal court in March after their reporters were denied access to hearings as well as to notification of the hearings.

Immigration judges in New Jersey had launched a blanket closure policy in response to a Sept. 21, 2001, directive by chief U.S. Immigration Judge Michael Creppy.

In May, Bissell issued a nationwide injunction prohibiting the government from holding closed hearings, saying the plaintiffs would be irreparably harmed if they could not attend the hearings. In June, the Supreme Court stayed his ruling while the government’s appeal was pending.

The 3rd Circuit majority--Becker, joined by Judge Morton I. Greenberg--took a dramatically different approach from the 6th Circuit panel, which ruled 3-0 that the government’s blanket closure of deportation hearings for people targeted after Sept. 11 was unconstitutional.

In that ruling, Judge Damon Keith said, “Democracies die behind closed doors.”

Becker, the 3rd Circuit’s chief judge, responded by quoting a skeptical commentary in the Washington Post by Michael Kelly:

“Democracies die behind closed doors. So they do, sometimes. But far more democracies have succumbed to open assaults of one sort or another--invasions from without, military coups and totalitarian revolutions from within--than from the usurpation-by-in-camera incrementalism that Judge Keith fears.”

The executive branch has virtually total power over immigration matters, and the Justice Department asserted that in both of these cases this power should supersede any 1st Amendment right of access to deportation hearings. The 3rd Circuit disagreed, but nonetheless ruled for the government.

The 3rd Circuit majority said that there was not an unbroken, uncontradicted history of deportation hearings being open in the same way that criminal trials are open. The court said there was only a qualified right of access to such hearings, similar to rules governing hearings on Social Security disability benefits and other administrative proceedings.

Moreover, the court said that it had to consider the potential adverse consequences of open hearings in light of the events of Sept. 11 and the ensuing “war against terrorism that has pervaded the sinews of our national life since that day.”

The majority accepted the argument of Justice Department lawyers that holding open hearings might lead to the revelation of sensitive information, including seemingly innocuous facts that, in reality, could tip off terrorists to what government investigators know or do not know about their activities. “In this case, the Government presented substantial evidence that open deportation hearings would threaten national security,” Becker wrote.

Scirica, the dissenting judge, said courts should accord the executive branch substantial deference in matters of national security. But he added, “Deference is not a basis for abdicating our responsibilities under the 1st Amendment.”

He said that closure of some of these cases might be warranted but that the government had not demonstrated why all should presumptively be closed.

“National security interests can be fully accommodated” by case-by-case review, Scirica concluded. All three 3rd Circuit judges were appointed by President Reagan, as was Bissell, the lower court judge. All three judges in the 6th Circuit case were appointed by Democratic presidents.