Government can close deportation hearings, rules federal appeals panel
By The Associated Press
10.08.02
PHILADELPHIA — A federal appeals court ruled today that immigration hearings may be closed by the government, dealing a blow to news media organizations who sought access to hearings involving foreigners swept up in the nation's terrorism investigation.
The three-judge panel of the 3rd U.S. Circuit Court of Appeals reversed a lower court ruling and said the attorney general has the right to close the hearings for reasons of national security. Justice Department lawyers had argued that national security would be threatened if reporters and others were allowed to attend.
Today's decision is at odds with an August ruling by the 6th Circuit that found the government couldn't hold secret deportation hearings for a Lebanese man with suspected terrorism ties. Such a split makes it more likely that the Supreme Court will hear an appeal in one of the cases to clear up confusion on the issue.
American Civil Liberties Union attorney Lee Gelernt, who argued the 3rd Circuit case on behalf of two New Jersey publications, said the news organizations are considering whether to appeal to the Supreme Court or ask for the case to be reheard by the full 3rd Circuit.
"We are disappointed that the court has sanctioned the use of secret hearings to deprive people of their liberty," he said. "Locking people up in secret hearings is profoundly at odds with the basic principles of fairness."
For nearly a year, reporters and members of the public have been barred from deportation hearings for hundreds being held in the nation's terrorism investigation. Media organizations sued to reopen the hearings, or to allow them to be closed only if the government could persuade a judge that secrecy was necessary.
The two-judge majority disagreed, however, writing that the types of deportation hearings being closed were "extremely narrow" and that the attorney general is in a better position than immigration judges to determine their importance to national security. If a terrorist cell learned one of its members had been detained, the judges reasoned, it might flee, destroy evidence, kill witnesses, modify its methods of entering the country or even accelerate plans for an attack.
"Even minor pieces of evidence that might appear innocuous to us would provide valuable clues to a person within the terrorist network," Chief Judge Edward R. Becker wrote.
Judge Anthony J. Scirica dissented.
The New Jersey Law Journal and the North Jersey Media Group, which publishes the Herald News of West Paterson, had challenged the rules in March. A federal judge in Newark ruled in May that the secrecy rules were too broad, and said the government could only close hearings on a case-by-case basis. The ruling was stayed while the case was appealed.
The 3rd Circuit's decision only applies to immigration hearings in New Jersey, Pennsylvania, Delaware and the Virgin Islands. The government's secrecy rules also have been challenged elsewhere.
In a similar case in Michigan, a three-judge panel of the 6th Circuit ordered the Justice Department in August to hold a new, open detention hearing for Rabih Haddad, who co-founded an Islamic charity suspected of funneling money to terrorists.
The Justice Department has until later this month to decide whether to ask the court for a rehearing in that case, which was brought by four newspapers and Rep. John Conyers, D-Mich.
Unlike criminal or civil trials, immigration hearings are not always public. The Justice Department had argued that while detention hearings have traditionally been open, a 40-year-old law allowed judges to exclude the public if doing so was in the nation's best interest.