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Citing 9/11, Appeals Court Upholds Secret Hearings October 9, 2002 By ADAM LIPTAK and ROBERT HANLEY The federal appeals court in Philadelphia ruled yesterday that the Bush administration had acted lawfully in holding hundreds of deportation hearings in secret based on its assertion that those detained might have links to terrorism. The decision was at odds with one rendered by the federal appeals court in Cincinnati in August, and the conflict between the two courts - the only ones to rule so far on the issue - makes it reasonably likely that the United States Supreme Court will consider one of the cases. For the past year, relatives of detainees, reporters and other members of the public have been barred from deportation hearings for immigrants detained in the nation's investigation of terrorism. The Justice Department asserts that opening the hearings would compromise national security by releasing information that could aid terrorist networks. In yesterday's decision, the three-judge panel of the United States Court of Appeals for the Third Circuit voted 2 to 1 to reverse the ruling of a federal district judge in Newark who had ordered all deportation hearings nationwide opened unless the government could prove on a case-by-case basis that secrecy was needed. "We are keenly aware of the dangers presented by deference to the executive branch when constitutional liberties are at stake, especially in times of national crisis," Edward R. Becker, the chief judge of the appeals court, wrote in the majority opinion. "On balance, however, we are unable to conclude that openness plays a positive role in special-interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension." Judge Morton I. Greenberg joined the opinion. Judge Anthony J. Scirica dissented, saying the proper approach would be to consider claims of national security case by case. All three judges were appointed by President Ronald Reagan. The case was brought by two New Jersey newspapers, and turned on the scope of the press and the public's right to attend administrative proceedings. But both the majority and dissenting opinions in yesterday's ruling understood the case to be about something more fundamental: the proper balance between liberty and security after Sept. 11. Assistant Attorney General Robert McCallum applauded the ruling. "Today's decision in the Third Circuit is not just a victory for the Justice Department," he said in a statement, "but for every American relying on the government to take every legal step possible to protect our nation from acts of terror while preserving constitutional liberties." Lee Gelernt, a lawyer with the American Civil Liberties Union who represented the newspapers, said his clients were reviewing the decision and considering their options, which could involve asking the full Third Circuit to hear the case or seeking Supreme Court review. Mr. Gelernt stressed that the newspapers did not contend that every hearing must be open, but only that immigration judges balance the competing interests on a case-by-case basis. "The government's burden here was to show that every minute of every hearing must be closed," he said. The Supreme Court has held that whether government proceedings must be open to the press and public as a general matter rests on the answers to two questions: whether the proceedings have historically been open and whether the public would benefit from openness. The appeals panel held that the hearings at issue satisfied neither standard. After reviewing the history of immigration proceedings, the majority held that there was "an insufficient tradition of openness to support the right" of access. Mr. Gelernt said this was a misreading of history. "Deportation hearings have always been open," he said, "and the government did not provide any evidence to the contrary." The majority seemed particularly persuaded by a statement submitted by Dale Watson, an F.B.I. official. "Watson submits that even details that seem innocuous in isolation, such as the names of those detained, might be pieced together by knowledgeable people within the terrorist network, who could in turn shift activities to a yet-undiscovered terrorist cell," Judge Becker wrote. "Because immigration judges cannot be expected to accurately assess the harm that might result from disclosing seemingly trivial facts, Watson explains, seeking closure on a case-by-case basis would ineffectively protect the nation's interests." David A. Schulz, a lawyer representing several news organizations, including The New York Times, in a friend-of-the-court filing in support of the New Jersey newspapers, said the majority was too credulous. "They unquestioningly accepted the government's parade of national security horribles that could hypothetically exist," he said. "But those horribles could equally apply to criminal trials and all sorts of proceedings that must unquestionably be open." Eric M. Freedman, a professor at Hofstra University School of Law, said the court's reasoning was unduly deferential to the government. "Closed proceedings are always more convenient to the executive branch," he said. "But judges are paid to make judgments." At issue in the case was a directive issued by Michael J. Creppy, the nation's chief immigration judge, 10 days after the Sept. 11 attacks. He imposed conditions in what he called "special interest" cases involving alleged links to terrorism: that they be heard separately from all other cases on the docket, that the courtroom be closed to family and others, and that the court refrain from confirming or denying whether such a case was on the docket. The government has never formally explained how it decided which visa violators would be singled out for this process, and it has insisted that the designations could not be reviewed by the courts. More than 600 hearings were eventually labeled "special interest." According to the Justice Department, 752 people were detained on immigration violations in connection with Sept. 11 investigations. As of late June, 81 remained in custody. The rest were released or deported. The decision by the Court of Appeals for the Sixth Circuit, in Cincinnati, which required open deportation proceedings unless cause is shown for secrecy, is now the law in Kentucky, Michigan, Ohio and Tennessee. The government has not decided yet whether to appeal. One of the court's judges was appointed by President Carter; the other two were appointed by President Clinton. A great many of the deportation hearings have been held in New Jersey, however, and will continue to be closed under yesterday's decision. The case in question involved Malek Zeidan, a Syrian citizen living in Paterson, N.J., who overstayed his visa by 14 years and was detained in January. In May, John W. Bissell, the chief judge of the Federal District Court in Newark, appointed by President Reagan, ruled for the newspapers. The government asked the Third Circuit to block Judge Bissell's order until the appeal was decided. When the court declined to do that, the government asked the Supreme Court to stay Judge Bissell's order. The court, in a relatively unusual move given that the case was not before it for any other purpose, blocked Judge Bissell's order. Professor Freedman said this signal from the Supreme Court might have helped determine the case. "The real scandal here," he said, "is that history, law, policy and the precedents of the Supreme Court, to say nothing of the Constitution, require the opposite result." http://www.nytimes.com/2002/10/09/politics/09IMMI.html?ex=1035202309&ei=1&en=a26a6bc97fd5b858 HOW TO ADVERTISE --------------------------------- For information on advertising in e-mail newsletters or other creative advertising opportunities with The New York Times on the Web, please contact [EMAIL PROTECTED] or visit our online media kit at http://www.nytimes.com/adinfo For general information about NYTimes.com, write to [EMAIL PROTECTED] Copyright 2002 The New York Times Company <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! 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