Supreme Court Decision Leaves Secret Deportation Hearing Policy Unclear

By deciding against review of a New Jersey case that allowed secret deportation hearings at the government’s discretion, the Supreme Court leaves the government without a clear national policy. The highest Court effectively allowed secret hearings in 46 states and at the same time restricted the government’s power in the four states belonging to the 6^th Circuit – Tennessee, Michigan, Ohio and Kentucky.

In the 46 states outside the 6^th Circuit, the Department of Justice can close immigration hearings to the public and media in cases it determines to be important for national security.

On Sept. 21, 2001, Chief Immigration Judge Michael Creppy, under the direction of Attorney General John Ashcroft, issued an order that deportation hearings should be closed in any case deemed of “special interest” in the investigation of the attacks.

The 6^th Circuit Court of Appeals ruled that this directive violated the First Amendment rights of the public and the media in a Michigan case concerning a detainee. Then, in the present New Jersey case, the 3^rd Circuit Court of Appeals upheld the government directive by a 2-1 vote.

After the decision by the Supreme Court to pass on the issue, the Detroit Free Press attorneys who filed the lawsuit in the 6^th Circuit case stated that they will not appeal the decision. The government can still ask the Supreme Court to review the decision from that case. However, the Department of Justice said in a legal brief that it would not appeal the 6^th Circuit’s decision if the Supreme Court chose not to review the 3^rd Circuit’s decision.

While immigration hearings are typically open, this directive has placed a limit on the access to individuals facing possible deportation because of ties to terrorist networks. The government took the majority of the so-called “special interest” detainees into custody from New York and New Jersey following Sept. 11. Of the 766 “special interest” detainees, the government has deported 505 individuals.

The government alone has the right to determine if a detainee or case is of special interest to the war on terrorism. The Bush administration defended the policy as a security precaution.

The attorneys for the New Jersey newspapers that filed the lawsuit against the government said they believe that this ruling gives too much discretion to the federal agencies.

“An individual’s liberty is at stake in a deportation hearing,” the newspapers’ lawyers wrote. “Yet the government nonetheless claims the power to hold these proceedings beyond public scrutiny, without providing any particularized showing that secrecy is necessary.”

The Bush administration’s top Supreme Court lawyer urged the Court to stay out of the 3^rd Circuit case.

“There is no First Amendment right of public access to executive branch proceedings in general or to removal proceedings involving special interest aliens in particular,” Solicitor General Theodore Olson argued in a court filing.

The government said its policies are “currently under review” in a brief filed with the Supreme Court in the New Jersey case. Spokesmen for the American Civil Liberties Union stated that the ACLU would continue to monitor the government to determine if any policy changes occur.