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From the Fall 2002 issue of The News Media & The Law, page 4.
By Sara Thacker
Behind closed doors and hidden from public scrutiny, the government secretly deported 446 immigrants swept up on immigration violations in the wake of September 11. Do these secret deportation hearings violate the U.S. Constitution? Two federal appellate courts disagree.
Arguing that the First Amendment provided a constitutional right of access, the media filed motions to open immigration hearings of "special interest" detainees. Victory seemed certain when federal judges in both Michigan and New Jersey ruled in favor of the media to open these proceedings.
However, access would not be that easy. On appeal, judges in the Sixth and the Third Circuits produced conflicting opinions that can be resolved by the U.S. Supreme Court only if one of the parties requests review.
The Creppy directive
After being held on immigration violations for more than 300 days and appearing at more than three secret immigration hearings, Rabih Haddad testified for the first time in open court Oct. 1.
Although Haddad has not been charged with a crime and is accused only of overstaying his visa, the government labeled his case as one of "special interest."
According to a court document filed by the Justice Department, "special interest" cases are those in which the Federal
Bureau of Investigation has a continuing interest because they relate to the government's terrorist investigations. The government has complete discretion to label any case one of "special interest."
Under a Sept. 21, 2001, directive from Chief Immigration Judge Michael J. Creppy, these "special interest" cases required absolute secrecy. Ten days after the attacks on the World Trade Center and under the direction of Attorney General John Ashcroft, Creppy ordered courtrooms closed for all "special interest" cases: "No visitors, no family, and no press."
The Creppy directive also prohibited court personnel from confirming whether a "special interest" case is on the docket, disclosing the record of these proceedings, or discussing such cases.
From Sept. 11, 2001 to Oct. 10, 2002, the U.S. government took 763 individuals into custody on immigration charges in connection with its terrorism investigation, said Jorge Martinez, a spokesperson for the Justice Department.
"All 763 [individuals] were 'special interest' cases," Martinez said.
The "special interest" label gave the government the power to secretly deport and release hundreds of individuals. Of those 763 "special interest" cases, the government released 242 individuals (32 percent) without any charges and deported 446 individuals (58 percent) on immigration violations after September 11.
Many immigration attorneys worry that the government applied the "special interest" label too liberally and without proving individuals' connections to terrorism.
Regis Fernandez, an attorney who represented almost 100 people after September 11 in immigration proceedings, said the government initially labeled all 100 immigrants "special interest" cases, but eventually removed the label on about two-thirds of these cases.
The first challenge
Four Michigan newspapers, the Detroit Free Press, The Ann Arbor News, The Detroit News and the Metro Times, and Rep. John Conyers (D - Mich.) challenged the Creppy directive in court after being denied access to Haddad's immigration proceedings.
Both the U.S. District Court in Detroit and the U.S. Court of Appeals in Cincinnati (6th Cir.), which hears appeals from the Detroit federal court, agreed that the blanket closure of "special interest" immigration proceedings violated the First Amendment. (Detroit Free Press v. Ashcroft)
In determining whether the press had a First Amendment right of access to Haddad's immigration proceedings, the courts applied what is known as the Richmond Newspapers "experience and logic" test. This test examines whether there is a history of open access to the proceedings and whether open access plays a "significant positive role in the function" of the immigration proceeding. (Richmond Newspapers v. Virginia)
In reviewing the history of deportation proceedings, both the federal district court and the appellate court found a long tradition of openness. The courts traced the history of deportation proceedings back to the first general immigration laws enacted more than 100 years ago.
While Congress repeatedly enacted laws closing exclusion hearings, no laws have ever closed deportation proceedings. The distinction between exclusion hearings, which determine whether immigrants can enter the United States, and deportation hearings, which determine if an alien who entered can be removed, is significant because once immigrants enter the country, they are entitled to certain due process rights.
"Congress has long been aware that deportees are constitutionally guaranteed greater procedural rights than those excluded upon initial entry," Judge Damon J. Keith wrote Aug. 26 in the unanimous Sixth Circuit opinion. "Therefore, Congress likely legislated key differences between both procedures accordingly."
A 1964 Immigration and Naturalization Services regulation requires open deportation proceedings with limited exceptions. Both the federal district court and appellate court recognized that the presumptive openness of deportation hearings for almost 40 years established a history of openness.
In applying the "logic" part of the test, the courts found that open access to deportation hearings also serves a significant positive role in the function of these proceedings.
"Public access undoubtedly enhances the quality of deportation proceedings," Keith wrote in the Sixth Circuit opinion. The opinion pointed to five factors supporting openness to deportation proceedings:
• "Public access acts as a check on the actions of the Executive by ensuring that proceedings are conducted fairly and properly."
• "Openness ensures that government does its job properly; that it does not make mistakes."
• Open hearings are outlets for "community concern, hostility, and emotions."
• "Openness enhances the perception of integrity and fairness."
• "Public access to deportation proceedings helps inform the public of the affairs of the government."
The positive role openness plays in deportation proceedings became even more important after September 11, said Leonard Niehoff, attorney for The Detroit News. "Since 9-11, there has been an overarching need for reassurance . . . that government is pursuing people who committed this atrocity . . . and not catching innocent people in the net."
"It is important for the public, particularly individuals who feel that they are being targeted by the Government as a result of the terrorist attacks of September 11, to know that even during these sensitive times the Government is adhering to immigration procedures and respecting individuals' rights," U.S. District Court Judge Nancy Edmunds wrote in her April 3 opinion. "Openness is necessary for the public to maintain confidence in the value and soundness of the Government's actions, and secrecy only breeds suspicion as to why the Government is proceeding against Haddad and aliens like him."
The open hearing provided "an opportunity to tell us who is Rabih Haddad and to challenge the government's allegations that he is a threat to national security . . . in the full light of public scrutiny," said Noel Saleh, Haddad's attorney.
Public scrutiny of deportation proceedings is particularly important in the immigration context where the judge and prosecutor both report to the executive branch, said Eric Freedman, professor of Constitutional Law at Hofstra University School of Law in Hempstead, N.Y.
As the Sixth Circuit explained, because deportees do not have a right to a government-appointed attorney, "the press and public may be their only guardian."
Strict scrutiny applied
After finding a First Amendment right of access to a particular proceeding by satisfying the "experience and logic" test, courts will allow closure only if the party requesting it shows a compelling interest sufficient to justify closure and demonstrates that closure is narrowly tailored to serve that compelling interest. This "strict scrutiny" analysis requires the immigration judge to issue specific findings so that an appellate court can determine whether closure of the proceeding was proper.
The government argued that it had a compelling interest in preventing disclosure of the "special interest" detainees' names, and dates and places of their arrests because of the dangers openness would pose in fighting the war against terrorism.
Relying on the affidavit of James S. Reynolds, chief of the Terrorism and Violent Crimes Section of the Justice Department's Criminal Division, the government argued that access to deportation hearings could lead terrorist organizations to intimidate or harm potential witnesses and sources associated with "special interest" detainees or enable terrorist organizations to create false or misleading evidence.
Disclosure also could inform terrorist organizations that a "special interest" detainee was in custody and prevent the government from using a detainee to infiltrate terrorist organizations, Reynolds' affidavit stated. Alternatively, if terrorists knew the government held one of its operatives, they could find substitutes to carry out their plans.
Moreover, public disclosure of the "special detainees" could stigmatize those who ultimately have no connection to terrorism, according to Reynolds.
The government also relied on the affidavit of Dale L. Watson, the executive assistant director for Counterterrorism and Counter intelligence for the FBI. Open immigration hearings could reveal investigative methods and sources, such as how detainees entered the country, evidence against members of a particular terrorist cell, or even what information the government lacks, Watson stated.
Like the "construction of a mosaic," bits and pieces of information that may appear innocuous in isolation could be used by terrorists to form a "bigger picture" of the investigation, the government argued.
The Sixth Circuit acknowledged the government's compelling interest in preventing terrorism, but held that the Creppy directive was not narrowly tailored to serve that interest.
Like the district court, the Sixth Circuit found no reason why closure could not be addressed on a case-by-case basis.
In Haddad's case, both courts found that the government's interests could not justify closure because Haddad's name and date and place of his arrest was already public knowledge.
While the Creppy directive prevents court personnel from disclosing information about these "special interest" detainees, it does not prevent "special interest" detainees, their counsel, families or friends from revealing information about their case to the press or public.
The Creppy directive was "both overbroad and under-inclusive at the same time," Detroit News attorney Niehoff said. "On the one hand, the Creppy memorandum directed that the court close every minute of every proceeding. . . . On the other hand, it didn't prevent any information from leaking out because the [detainees'] attorneys could still talk about the case."
Even if a "special interest" detainee were to remain silent, "a terrorist group capable of sophisticated intelligence-gathering would certainly be made aware that one of its operatives, or someone connected to a particular terrorist plot, has disappeared into the Government's custody," the Sixth Circuit stated.
The Sixth Circuit also found that the government's "mosaic" theory of intelligence gathering went too far.
"The Government could operate in virtual secrecy in all matters dealing, even remotely, with 'national security,' resulting in a wholesale suspension of First Amendment rights," the Sixth Circuit explained. "By the simple assertion of 'national security,' the Government seeks a process where it may, without review, designate certain classes of cases as 'special interest cases' and, behind closed doors, adjudicate the merits of these cases to deprive non-citizens of their fundamental liberty interests."
A different result
Challenges to the Creppy directive produced very different results in the U.S. Court of Appeals in Philadelphia (3rd Cir.), which heard the appeal of a case from the U.S. District Court in Newark, N.J.
In February 2002, immigration judges in Newark closed deportation proceedings of "special interest" detainees Ahmed Raza and Malek Zeidan. Fernandez and Bennett Zurofsky, attorneys for Zeidan, challenged the closure as unconstitutional under the Due Process Clause of the Fifth Amendment. The New Jersey Law Journal and the Herald News also filed suit challenging the closure of these hearings under the First Amendment.
Instead of responding to the challenge, the government removed the "special interest" label from Zeidan's case and opened his immigration proceedings to the public. The government insisted the case was moot because Zeidan's hearings were open. However, the district court agreed to hear the case because the media would likely be denied access to other special interest hearings and such immigration proceedings are so short-lived that closure could evade appellate review.
Like the federal court in Detroit and the Sixth Circuit, the federal court in Newark ruled that Creppy's blanket closure of "special interest" immigration proceedings violated the First Amendment.
On appeal, a divided panel of the Third Circuit reversed that decision Oct. 8. Departing from the logic of the five federal judges -- two different trial judges and three appellate judges -- who ruled on the Creppy directive, the Third Circuit upheld the constitutionality of secret deportation hearings. (North Jersey Media Group, Inc. v. Ashcroft)
Deportation proceedings fail the test
Over the government's objection, the Third Circuit, in an opinion written by Chief Judge Edward Becker, applied the Richmond Newspapers' "experience and logic" test to determine whether the press had a First Amendment right to attend administrative deportation proceedings.
The government argued that the First Amendment right of access applies only to criminal and civil court proceedings because of the Sixth Amendment right to a public trial. By using this linkage, the government concluded that the right of access applies only to the judicial branch and not to deportation hearings, which are a function of the executive branch.
The Third Circuit rejected this approach and found that "the Sixth Amendment cannot be the sole source of a First Amendment right of access." In doing so, the Third Circuit extended the Richmond Newspapers' "experience and logic" test to administrative proceedings.
Deportation proceedings, however, failed the test. In a 2-1 decision, the Third Circuit found that history did not support access to deportation proceedings.
In examining the history of access to governmental proceedings generally, the Third Circuit found that many administrative hearings, such as Social Security disability claim hearings, administrative disbarment hearings and adverse passport decisions, establish a tradition of closing sensitive administrative proceedings.
While the Third Circuit cited numerous regulations closing administrative proceedings, those regulations have never been constitutionally challenged or upheld by courts, Freedman noted.
As for deportation hearings, the Third Circuit found that "the tradition of open deportation hearings is too recent and inconsistent to support a First Amendment right of access."
The mere fact that Congress expressly closed exclusion proceedings while remaining silent on deportation proceedings did not establish a historical right of access. As the Third Circuit stated: "We are unwilling effectively to craft a constitutional right from mere Congressional silence."
Instead of finding a history of openness, the Third Circuit found that in practice the public often is excluded from deportation hearings. Such hearings often are conducted in prisons, hospitals, or private homes, the court noted.
However, the location of the proceeding does not necessarily establish closure. "Even in jails we can bring in witnesses and the public. You just have to notify the jail for security reasons," Fernandez said.
The Third Circuit also focused on the exclusions to the INS regulations that require open access to immigration proceedings except in cases involving abused alien children or spouses.
This was not the type of "unbroken, uncontradicted history" sufficient to establish a First Amendment right of access, the Third Circuit held.
While the Third Circuit recognized the benefits of access to deportation hearings, it also examined the extent to which openness impairs the public good.
"Since the primary national policy must be self-preservation, it seems elementary that, to the extent open deportation hearings might impair national security, that security is implicated in the logic test," the Third Circuit explained.
The authority to close select deportation hearings "is an important, constitutional tool in this time of war, when we face an unparalleled threat from covert and unknown foes spread across the globe," Assistant Attorney General Robert McCallum stated in comments to the public.
While the Third Circuit recognized that the government's national security concerns "are to some degree speculative," the court was "quite hesitant to conduct a judicial inquiry into the credibility of these security concerns . . . where courts have traditionally extended great deference to Executive expertise."
"To the extent that the Attorney General's national security concerns seem credible, we will not lightly second-guess them," the Third Circuit stated.
"On the other hand, deference is not a basis for abdicating our responsibilities under the First Amendment," Judge Anthony J. Scirica countered in his dissenting opinion.
Scirica found a presumptive right of access to deportation proceedings based on the history of openness and the positive role openness plays in these proceedings.
"Whether national security interests justify closure of individual deportation hearings is a question properly addressed in the next step's more particularized inquiry [applying strict scrutiny analysis]," Scirica wrote.
The government could protect its interest in national security by applying closure of deportation proceedings on a case-by-case basis, Scirica concluded. "Because this is a reasonable alternative, the Creppy Directive's blanket closure rule is constitutionally infirm."
"The Third Circuit was too quick to defer to government and the national security justifications it proffered," said Nancy Chang, counsel for the Center for Constitutional Rights. "In doing so, it lost sight of the critical role that the press plays in ensuring the fairness of immigration proceedings and in maintaining the public perception that justice is being done."
The New Jersey Law Journal and the Herald News did not request access to every minute of every deportation proceeding.
"Our position was very moderate," explained Lawrence Lustburg, attorney for the two publications. "The decision [to close] should be made on a case-by-case basis. This is not a radical proposition."
A split in the circuits
The Third Circuit decision created a split between the Third Circuit and the Sixth Circuit that only the U.S. Supreme Court can resolve.
Unless the government or the media appeals these conflicting decisions, "special interest" immigration hearings will be open in the Sixth Circuit, covering federal courts in Kentucky, Michigan, Ohio and Tennessee, while these same hearings will be closed in the Third Circuit, covering federal courts in Delaware, New Jersey, and Pennsylvania.
On Oct. 24, the government requested that the entire Sixth Circuit court review the panel's decision. Because the Third Circuit issued its opinion on Oct. 8, the New Jersey Law Journal and the Herald News have until Jan. 6 to appeal to the U.S. Supreme Court. These publications could also file a petition for rehearing en banc by Nov. 22, which would provide an opportunity for judges on the Third Circuit to rehear the case and issue a new ruling.
The effects of secrecy
For Malek Zeidan, the detaineee whose "special interest" label prompted the media to sue for access in New Jersey, secrecy was something to fear.
"I am afraid of a closed courtroom
hearing. I feel that the mere fact that my hearing is closed prejudices me with the insinuation being that I am a dangerous person," Zeidan wrote in a declaration to the court.
"Prosecutors were drawing the connection between secrecy and guilt," Fernandez said.
Zeidan wanted the media to attend his hearing so that he could be publicly exonerated. "I wish to have reporters cover my hearing so that my community in Paterson [New Jersey] can see that I have no association to September 11," Zeidan wrote.
After the government removed the "special interest" label from Zeidan's case and opened his proceedings, the media did not attend, Fernandez said.
"Actually, a very important person did show up," Fernandez said. "[Zeiden's] U.S. citizen cousin, Ali Zeidan, attended the hearing and could take notes and explain it to his cousin afterwards so that is definitely a benefit and a better reason than even the media for why a hearing should be open."
"It is critically important that the media attend to ensure that the government proceeds consistently with the Constitution," said Lee Gelernt, senior staff counsel for the American Civil Liberties Union, Immigrants' Rights Project, who filed suits for access in both Michigan and New Jersey.
"Immigration hearings have been occurring throughout American history," Lustburg said. However, "because the press hasn't covered immigration hearings, the history of openness to these proceedings is not as strong as it could be."
Without access, the public loses. The public may never know about the 446 "special interest" detainees that were deported or the 35 "special interest" detainees who remain in custody.
Secrecy leaves the public in the dark -- unable to assess whether the deportation of hundreds of individuals is effective or fair.