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Secret U.S. Deportation Hearings Ruled Illegal

Terrorism: The broad closure of proceedings is unconstitutional, federal appeals court says. It is the fourth judicial challenge to Bush policy.


The blanket closure of deportation hearings for individuals targeted in the massive post-Sept. 11 terrorism investigation is unconstitutional, a federal appeals court in Cincinnati ruled unanimously Monday.

The ruling is the fourth this year and the first by a federal appellate court striking down controversial government secrecy policies enacted in the aftermath of the terrorist attacks.

The Justice Department has closed hundreds of immigration hearings, even keeping the fact of the hearings secret, on the grounds that permitting them to be held publicly could compromise the nation's security.

With hundreds of detainees already deported, the department said earlier this summer that only 74 noncitizens held after Sept. 11 remained in custody.

The 3-0 decision by the U.S. 6th Circuit Court of Appeals upheld a ruling earlier this year by a federal trial judge in Detroit, who said the Justice Department policy violated the 1st Amendment. In addition, federal trial judges in Newark, N.J., and Washington, D.C., have ruled against the Justice Department in related cases where the government was trying to keep secret information on arrests and investigations related to the terrorist attacks.

In each instance, the judges handling the case acknowledged that the government had legitimate concerns about terrorism but ruled that it had failed to justify its arguments that secrecy was necessary. All those rulings have been appealed.

In Monday's decision, 6th Circuit Judge Damon J. Keith referred to the Sept. 11 attacks as "egregious, deplorable and despicable," but he said some of the arguments advanced by Justice Department attorneys were "profoundly undemocratic."

"The Executive Branch seeks to uproot people's lives outside the public eye and behind a closed door," Keith wrote.

"Democracies die behind closed doors. The 1st Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully and accurately in deportation proceedings. When the government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation," Keith said.

Monday's decision means that any individual held for an immigration-related problem in the 6th Circuit--which has jurisdiction over cases from Kentucky, Michigan, Ohio and Tennessee--is entitled to an open hearing unless an immigration judge determines that publicly airing information in the case might raise national security concerns, said Kary Moss, an American Civil Liberties Union attorney in Detroit.

The ruling arose in the case of Rabih Haddad, a Lebanese native who is a longtime resident of Ann Arbor, Mich., and the founder of the Global Relief Foundation, an Islamic charity that the government has been investigating since the attacks.

On Dec. 14, the government took Haddad, 41, into custody, raided the Brideview, Ill., headquarters of Global Relief and seized its assets.

After Haddad was detained, Elizabeth Hackett, an immigration judge in Detroit, held three closed hearings in his case, citing a Sept. 21 directive by Michael Creppy, the chief U.S. immigration judge.

The government asserts that Global Relief glorifies "martyrdom through jihad," but the group denies that it has terrorist ties. Ashraf Nubani, the organization's attorney, contends the group was targeted because of help it provided to Palestinians.

Global Relief sued to recover its assets, but the seizure was upheld by a federal judge, who acknowledged that he based his decision in part on secret evidence provided by the FBI. That ruling is being appealed.

Earlier this year, Haddad, several Michigan newspapers and Rep John Conyers Jr. (D-Mich.) sued Atty. Gen. John Ashcroft and other government officials seeking a ruling that Haddad's deportation hearings be open.

The executive branch has virtually total power over immigration matters, and in this case the Justice Department asserted that this power should supersede any 1st Amendment right of access to deportation proceedings. The 6th Circuit disagreed.

In upholding U.S. District Judge Nancy G. Edmunds, the court ruled that Haddad and the public had a right to be present at his deportation hearings, unless the government made a strong showing justifying the need for secrecy.

In the case formally known as Detroit Free Press vs. Ashcroft, the court said the government had made no such showing in this case and offered "no persuasive argument as to why the government's concerns cannot be addressed on a case-by-case basis."

The 6th Circuit cited a long line of U.S. Supreme Court rulings saying that the public and the press have a right to attend court proceedings and that since "deportation proceedings bear a strong resemblance to judicial trials," similar principles should apply. The court also noted that deportation hearings historically have been open.

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