Secrecy remains supreme in terrorism cases

From the Summer 2003 issue of The News Media & The Law, page 3.

A year ago, it seemed inevitable that the first major September 11-related decision faced by the U.S. Supreme Court would be to decide whether immigration courts, which are administrative bodies operated by the Justice Department, could be closed to public scrutiny.

But the Court ducked the issue in May, denying a petition for certiorari in North Jersey Media v. Ashcroft. So now we have a new principle of justice: In the United States, immigrants can be secretly arrested, secretly jailed and secretly thrown out of the country. Just like in your basic third-world military dictatorship.

How in the world did we get to such an appalling time and place in history?

Over the last two years, the Reporters Committee has reported that more than 1,200 Muslim and Arab men were arrested secretly and imprisoned since September 11, 2001. Although some were jailed as material witnesses, 766 were jailed as "special interest" immigration cases for whom all hearings were closed in accord with a directive from the chief immigration judge, Michael Creppy.

The directive led to separate lawsuits in Michigan and New Jersey. In Michigan, several newspapers, the American Civil Liberties Union and Rep. John Conyers (D-Mich.) asked to attend deportation hearings for Rabih Haddad, the Lebanese co-founder of an Islamic charity.

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.

A panel of the U.S. Circuit Court of Appeals (6th Cir.) forcefully and unanimously affirmed the district court with this ringing endorsement of basic democratic principles: "Democracies die behind closed doors."

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

The U.S. Circuit Court of Appeals (3rd Cir.) reached the opposite result in a case where immigration judges in Newark, N.J., closed deportation proceedings of two men in February 2002. As in Michigan, media organizations were among the challengers to the closures.

With a split in the circuits, the issue appeared to be teed up for a decision by the U.S. Supreme Court. The Third Circuit case reached the Court first, and the Justice Department came up with a creative and frustrating argument to support secrecy. Essentially, the government said, there was no longer a case because all of the Arab, Muslim men who were subject to the Creppy directive had been deported. End of story.

The Supreme Court apparently bought the argument.

For the past two years, journalists attempting to cover the war on terrorism have been operating in the Twilight Zone. None of the old rules apply. Immigrants can be jailed secretly and deported. Enemy combatants can be held secretly at a U.S. military base in Cuba. (Meanwhile, the British and Australian governments have identified some of their citizens are who are being held at Guantanamo Bay.) U.S. citizens can be held incommunicado without lawyers in military brigs. The FBI can execute search warrants on bookstores, libraries and newsrooms, and then impose a gag prohibiting those involved from reporting that they've just been searched. Reporters' telephone conversations can be wiretapped and their packages intercepted by the FBI.

As Associated Press reporter John Solomon asks in his guest column in this issue of The News Media & The Law (on page 7): When is enough, enough?

The time is now.

— Lucy Dalglish