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Appeals Court Says Hearings Cannot Be Closed to Public

By Charles Lane
THE WASHINGTON POST -- A federal appeals court ruled Monday that the press and public must be allowed to witness immigration hearings for suspects detained in the Sept. 11 investigation, strongly rebuking the Bush administration for its policy of maximum secrecy in the war on terror.

A three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit concluded that the news media and ordinary citizens alike have a constitutional “right of access” to deportation proceedings which was violated by a Sept. 21, 2001 Justice Department order closing hearings deemed of “special interest” to the terrorism probe.

Under the order, “the Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door,” Senior Judge Damon J. Keith wrote in the opinion for the court. “Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully and accurately in deportation proceedings.”

The ruling in the case of Michigan activist Rabih Haddad marked the first time since Sept. 11 that a major component of the Bush administration’s legal approach to the anti-terror campaign has been declared unconstitutional at the appeals court level, which is a step below the Supreme Court.

This ruling is not the last word on the issue, however. The Justice Department, which had argued that there is no right of access to administrative hearings such as those conducted by immigration judges, may appeal the case either to the full membership of the 6th Circuit or directly to the Supreme Court.

“The Justice Department disagrees with the Court’s conclusion that the Department’s guidelines for determining which proceedings should be closed are too broad,” said Barbara Comstock, a spokesperson for Attorney General John Ashcroft. “The Justice Department has an obligation to exercise all available options to disrupt and prevent terrorism within the bounds of the Constitution, and will review today’s opinion in light of our duty to protect the American people.”

Department lawyers might wait to shape their full legal strategy until the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit decides a similar case pending in that court.

Under the so-called “Creppy memo,” issued by chief immigration judge Michael Creppy on Sept. 21, 2001, the Justice Department considers all immigration hearings involving terror suspects off-limits to the press and public, including the detainee’s family.

The most minor disclosure of information could help terrorist groups understand how much intelligence the government does or does not have, undermining the anti-terror effort, Justice Department officials have said.

But Keith wrote that the government had failed to show that secrecy was necessary to protect national security in every case.

If the 6th Circuit’s approach were to prevail, current and future deportation hearings would be presumed open to outside scrutiny, unless the government could persuade a federal court that the proceeding had to be completely or partially closed to protect sensitive intelligence.

More than 750 of the 1,200 people detained in the aftermath of Sept. 11 were held on immigration charges.