Jewish World Review Oct. 15, 2002 / 9 Mar-Cheshvan, 5763

Terry Eastland

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Open hearings that could imperil the nation | Soon after Sept. 11, the Bush administration did things that annoyed the news media. One was to adopt a policy by which the deportation hearings of aliens the government believes "might have connections with, or possess information pertaining to, terrorist activity against the United States" would be automatically closed to the press and the public.

News organizations in Michigan and New Jersey challenged the policy as a violation of the First Amendment. In August, the 6th U.S. Circuit Court of Appeals sided with the press. Last week, the 3rd U.S. Circuit Court of Appeals supported the government. The issue may be taken up by the Supreme Court soon.

The policy under attack does raise difficult questions. But whether it violates the First Amendment isn't one of them.

A deportation hearing is an administrative proceeding conducted by the executive branch. Nothing in the text or the history of the Constitution supports the notion that the First Amendment includes a right of access to administrative proceedings. Whether to open or close such proceedings is for the political branches to decide. In other words, the question is one the Constitution leaves open.

It is tempting to think otherwise, inasmuch as some government proceedings may not be closed. In 1980, the Supreme Court said the First Amendment protects a right of access to criminal proceedings. While it hasn't extended that holding to encompass a right of access to civil proceedings, every federal appeals court to consider the question has taken that step. As for a right of access to administrative proceedings, however, the courts consistently have rejected such a claim. It is hard to imagine that the Supreme Court might do that now, especially not in a context involving national security.

As for the merits of the policy, it was devised a year ago, you will recall, when the Justice Department decided it would classify aliens believed to have terrorist links and to have violated immigration laws as presenting "special interest" cases. In a Sept. 20, 2001, directive, chief immigration judge Michael Creppy ordered that deportation hearings for such aliens would automatically be closed to the press and the public. "No visitors, no family and no press," says the Creppy directive. Immigration courts may not even confirm or deny whether a special interest case is on the docket. In sum, an information blackout.

Why has the government thought that closure is necessary? To keep potentially sensitive information out of the hands of those who would do us harm. Not just big stuff - like a phone number used by a detainee to call some terrorist somewhere - but also things that by themselves don't seem to amount to much (such as where the alien entered the country) but that terrorist groups might be able to fit into a bigger picture, adjust their evil designs accordingly and redeploy.

The government elaborated on those points in the just decided New Jersey case. The problem they raise is that they are as easy to dismiss as they are to accept. As the judges who sided with the government recognized, the arguments are speculative "insofar as there is no concrete evidence that closed deportation hearings have prevented, or will prevent, terrorist attacks."

On the other hand, who but law enforcement is in the best position to speculate about the dangers of open hearings? And who can say that closure hasn't worked to our net benefit in preventing attacks? It may be rhetorically powerful to declare, as the 6th Circuit did in its case, that "democracies die behind closed doors." But that isn't necessarily true, as the example of our own closed-door Constitutional Convention demonstrates. It is a mistake to think that open hearings work only positive effects or that only open hearings can work positive effects.

Still, conceding that open hearings could imperil the nation, it is a close question whether there needs to be a blanket closure rule. As the dissenting judge in the New Jersey case explained, the government could make its arguments case by case and effect a total blackout in each one. (Right now, only 35 "special interest" aliens remain in custody, 446 having been deported, 242 released and 40 transferred to other authorities.) But that assumes judicial deference in each case, and there is the possibility that some immigration judge might not defer, that information might get out, that terrorists might make adjustments, and so on.

Again, we are back to speculation. But it is the new and very dangerous world we have lived in since Sept. 11 that makes the speculation hard to discount.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland