Ruling Against Secret Hearings
Monday, August 26, 2002 7:18 p.m. EDT
CINCINNATI (Reuters) - A federal appeals court on Monday ruled that the Bush administration violated the U.S. constitution by holding secret immigration hearings for a figure under investigation in the Sept. 11 attacks.
"A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our constitution," the 6th U.S. Circuit Court of Appeals said.
It upheld a lower court decision that ruled against a series of closed hearings in the case of Rabih Haddad, the Michigan-based operator of an Islamic charity who overstayed his tourist visa and has been in custody since Dec. 19, 2001.
The Detroit Free Press and other news organization sued the Justice Department after the proceedings were closed under a policy that allows Attorney General John Ashcroft to declare certain cases to be special interest proceedings that can be conducted in secret.
Haddad's lawyer, Ashraf Nubani, said the hearings issue ultimately will go to the U.S. Supreme Court. There is a broader lawsuit against the secrecy policy working its way through the courts in another jurisdiction, Nubani said. And a separate suit has been filed on Haddad's behalf at the district court level.
Lee Gelernt of the American Civil Liberties Union's Immigrants Rights Project, who argued the case before the court, hailed the decision.
In a statement issued by the ACLU, Gelernt said the opinion "makes clear that ... the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny."
In its ruling, the court said: "There seems to be no limit to the government's argument. The government could use its ... argument as a justification to close any public hearing completely and categorically, including criminal proceedings. The government could operate in virtual secrecy in all matters dealing, even remotely, with 'national security,' resulting in a wholesale suspension of First Amendment rights."
The court also rejected the Justice Department's argument that the policy was fair because it was implemented on a case-by-case basis.
"The task of designating a case special interest is performed in secret, without any established standards or procedures, and the process is, thus, not subject to any sort of review," the court said.
"The public's interests are best served by open proceedings. A true democracy is one that operates on faith -- faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions," the appeals court said.
"This is a vital reciprocity that America should not discard in these troubling times. Without question, the events of Sept. 11, 2001, left an indelible mark on our nation, but we ... are a country deeply committed to preserving the rights and freedoms guaranteed by our democracy," it said.
Nubani said Haddad is being held at a jail near Monroe, Michigan, and his next hearing is scheduled for Oct. 7. Nubani said immigration officials have already served notice that they want that proceeding closed as well, arguing that if certain evidence is discussed in open court it could damage national security.
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