White House vows to fight disclosure in future trials
From the Spring 2002 issue of The News Media & The Law, page 47.
As the federal government tries to crack down on terrorism and seeks secrecy to “protect national security,” some courts are recognizing that security interests do not eradicate the constitutional rights of access to court proceedings.
The case of Muslim cleric Rabih Haddad has resulted in a challenge to the across-the-board closure of all immigration proceedings arising out of the Sept. 11 investigations that culminated in the release of transcripts of previously closed hearings.
On Sept. 21, Chief Immigration Judge Michael Creppy issued a memorandum to immigration judges and court administrators, explaining that “the Attorney General has implemented additional security procedures for certain cases in the Immigration Court.”
Among other procedures, judges are supposed to “close the hearing to the public” and avoid “disclosing any information about the case to anyone outside the Immigration Court.” The rule also restricts immigration court officials from confirming or denying whether any particular case exists on the docket.
The mandatory closure rule was used when Rabih Haddad, founder and chairman of Global Relief Foundation, was arrested on Dec.14 and charged with immigration violations.
The government accused Global Relief Foundation of being a front for funding terrorist activities and seized all of the organization’s assets. The Immigration and Naturalization Service also sought to deport Haddad.
Haddad, a Muslim cleric in Ann Arbor, Mich., was a well-known community figure and his arrest prompted several inquiries. Rep. John Conyers (D-Mich.) sought access to Haddad’s hearings to find out why he was being deported, but was denied access due to the Creppy memorandum. Conyers and local news outlets objected to the closures.
On Jan. 29, the American Civil Liberties Union filed a lawsuit in federal court in Michigan to challenge the closure of immigration proceedings. The lawsuit was filed on behalf of Conyers, as well as two newspapers, the Detroit News and the Metro Times. A similar lawsuit was filed a day earlier by the Detroit Free Press.
Both lawsuits, filed in the federal District Court for the Eastern District of Michigan in Detroit, alleged that Creppy’s order to close all immigration proceedings is unconstitutional. Elizabeth Hacker, the immigration judge in the Haddad case, relied upon Creppy’s order to close the Haddad proceeding.
Federal District Court Judge Nancy Edmunds ruled on April 3 that the closure of the immigration proceedings was unconstitutional. She ordered that all future proceedings be open and she later ruled that the transcripts of the closed proceedings be released to the press and public.
However, the government, claiming that openness would threaten national security, appealed immediately. The U.S. Court of Appeals in Cincinnati (6th Cir.) issued a partial temporary stay of Edmunds’ order on April 10 and permitted the government to challenge the order.
But on April 18, the 6th Circuit dissolved the stay, ruling that the government had not demonstrated that “irreparable harm” would result if the transcripts were released. The court permitted the government to continue its appeal, but the lower court’s order would not be stayed pending appeal.
The next day, the government released the transcripts of the closed Haddad hearings. In a reversal of its prior position, the government said the release of the transcripts would not harm national security. However, the government said it would continue its appeal with regard to the closure of future hearings.
“We will continue to defend the principle that the Constitution does not require immigration proceedings to be opened in a way that provides valuable information to terrorist organizations or others who wish to harm Americans,” Associate Attorney General Jay Stephens said.
The government also said it would continue to keep other proceedings secret and would continue to oppose the release of classified evidence against Haddad.
Classified material concerning Haddad has been filed under seal with a federal grand jury in Chicago that is investigating Global Relief Foundation.
Despite the victory in the immigration proceeding, national security concerns have been cited as the basis for the use of secret evidence in the case against the charity. On April 5, U.S. District Judge Wayne Anderson ruled that the government could use secret evidence to justify the freeze on Global Relief Foundation’s assets.
The transcripts in the Haddad immigration case will be available at the immigration court in Detroit. — AG