Closed hearings violate First Amendment rights

In a scenario which is becoming increasingly and exasperatingly familiar, the Justice Department is foreclosing public debate. When the public, as the petulant child, asks why, the Justice Department’s response is “terror.” This paternalistic “trust us” attitude is at the center of two recent cases in different federal circuits dividing on whether the Justice Department, by executive fiat, can decree that deportation hearings of individuals will be held away from the eye of the public, media, friends or even family of the person in question. To resolve a split among the circuits, the Supreme Court should take up this issue and rule against the Justice Department. This would encourage government transparency, protect individual rights and still maintain sufficient security controls so as not to compromise national security.

Although immigration judges have been advised to defer to the Justice Department’s judgment, there is a difference of opinion in the circuits. On Sept. 21, 2001, Chief Immigration Judge Michael Creppy issued a directive to all U.S. Immigration Judges. It stated that deportation hearings should be closed to the public if identified as special interest cases by the Justice Department. The Sixth Circuit Court of Appeals in Detroit Free Press v. Ashcroft held that the directive violated the plaintiff’s First Amendment right of access to public hearings. Although the government could conduct the hearings behind closed doors after a particularized showing on that case, the directive as applied to all cases was overly broad. The Third Circuit Court of Appeals in North Jersey Media Group v. Ashcroft disagreed. In that case the court held deportation hearings were not activities traditionally open to the public and the danger of proving the necessity of closed hearings in each case was too pernicious to be in the public interest.

It is easy to confuse the issue. What is at stake is not the government’s ability to present classified material in the hearing itself. Rather, the stakes are whether the executive branch must prove to the judicial branch whether the hearing should be closed on the merits of that hearing. Under Creppy’s directive, the Justice Department’s labeling of a case as a “special interest case” prevents such an inquiry. The Justice Department is not required to make any showing, any proof, or even any allegation, that the potential deportee has links to terrorism. Such sweeping, unreviewed state powers are more demagogue than democracy.

Even though the individuals undergoing the hearings are not American citizens, U.S. constitutional rights are endangered. The predominant interest being invoked is American citizens’ embedded First Amendment right of access to government trials proclaimed by the Supreme Court in an earlier case. To avoid this constitutional hurdle, the government has attempted to liken the deportation hearings to administrative matters for which no such right exists. However, the deportation hearings are confrontational and have traditionally been open to the public, aspects more akin to a trial than an internal CIA meeting. The lesser interest being invoked is the right of the detainees themselves. Although the protection of the constitution only extends to citizens, in a number of cases the Supreme Court has granted some of its shields to aliens living in the United States. These rights should not be degraded for an unexamined standard.

The security interests are not to be ignored. If anything, the bombing in Bali last weekend on the anniversary of the attack on the U.S.S. Cole demonstrates the threat of terrorism is still present and viable. The Justice Department argued that the release of any information, regardless of how seemingly innocent and including the detainee’s name and time and place of capture, could be hazardous. This information, when compiled by terrorists, could be used to construct a “mosaic” from which they could infer government methods and knowledge. Terrorists could then use that mosaic to frustrate government investigation and prevention. But even under the most open, standard, classified material, the determination can be shielded from the public eye and presented to the judge in his chambers. More prosaic information related to the arrest is available independently of the hearing. And as these are deportation hearings and not trials for incarceration, nothing prevents the deportees from disgorging the information they know once they leave the bounds of the United States. These cases are not matters of national security but of national accountability.

The Supreme Court should not allow the Justice Department to continue to operate unfettered by its coequal branches of government, which provide its constitutional check and the public, which provide it with its legitimacy. As of July 3, the Justice Department stated that more than 600 aliens had been identified for special interest, closed hearings. As these hearings come up in front of the court, and the Justice Department tells the court to hear them behind closed doors with only the justification of “trust us,” the courts should defend our democracy and respond with “show us.”