Two circuits, two views of public oversight

From the Fall 2002 issue of The News Media & The Law, page 3.

A year ago, we took for granted a basic democratic principle: In the United States, we don't secretly arrest people, secretly jail them, and then secretly deport them.

Yet, as our cover story outlines, about 1,200 Muslim and Arab men have been secretly arrested and imprisoned since Sept. 11, 2001. Journalists who have taken access to judicial and quasi-judicial proceedings for granted were particularly caught off guard by the Bush Administration's efforts to close immigration proceedings.

It seems inevitable that the first major September 11-related decision faced by the U.S. Supreme Court will be to decide whether immigration courts, which are administrative bodies operated by the Justice Department, can be closed to public scrutiny. Two U.S. Circuit Courts of Appeals have reached different results that can only be resolved by the high court.

In a stinging rebuke to the Bush Administration, the U.S. Court of Appeals in Cincinnati (6th Cir.) told us: "Democracies die behind closed doors. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution."

This articulate reminder of the need for open government, which could have been titled "Democracy in a Nutshell," should not have been necessary.

The Sixth Circuit ruling related to the case of Rabih Haddad, the Lebanese co-founder of an Islamic charity who has been jailed since December. Haddad is well-known in Ann Arbor. When he vanished, the community noticed.

Several Michigan newspapers, the American Civil Liberties Union and Rep. John Conyers (D-Mich.) asked to attend his deportation hearings. Relying on an order from the nation's chief immigration judge that all September 11-related immigration cases be closed, the Detroit immigration judge refused to open the proceedings. The newspapers, Conyers and the ACLU sued in U.S. District Court, where Judge Nancy Edmund ruled the blanket closure of all immigration hearings violates the Constitution. The Sixth Circuit panel forcefully and unanimously affirmed the district court.

The Sixth Circuit panel was appropriately skeptical of the government's argument that systematic closure of immigration hearings was necessary because national security information would be revealed. The opinion's author, Judge Damon Keith, pointed out that all that was necessary to deport Haddad was proof that he had obtained a visa, the visa had expired and that he remains in the country. Very little information is required, virtually none of it implicating national security interests.

The ruling provides ample protection for national security. The government retains the right to win secrecy on a case-by-case basis. If the immigration judge refuses to close an individual hearing, the government can appeal. Even at a public hearing, prosecutors may request that certain evidence be presented in secret.

The U.S. Court of Appeals in Philadelphia (3rd Cir.) reached the opposite result in a case where immigration judges in Newark, N.J., closed deportation proceedings of two men in February. As in Michigan, media organizations were among the challengers to the closures.

Among other reasons, the Third Circuit panel said deportation proceedings need not be conducted in public because "the tradition of open deportation hearings is too recent and inconsistent to support a First Amendment right of access."

It is obvious which ruling pays more respect to public oversight of government proceedings. The Sixth Circuit's ruling is particularly remarkable for its strong endorsement of the role the media plays in a democracy. The court noted that America is an information-based society. For the system to work, the media must provide enough information about what the government is doing so that voters will have the information they need to make good choices at the ballot box.

There obviously is a need to keep some secrets in wartime. But in difficult times, the executive branch usually equates safety and national security with secrecy. Fortunately, most courts have recognized that an ignorant society is not a safer society. If open government is destroyed in troubling times, haven't we already lost the war?

The Sixth Circuit's Keith reminds us that the public's interests are best served by openness. "A true democracy is one that operates on faith — faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions," he said. "This is a vital reciprocity that America should not discard in these troubling times."

We can only hope that the U.S. Supreme Court agrees with him. — Lucy Dalglish