ACLU Files First Post- Sept. 11 Challenge to Closed Immigration Hearings
In a case that could open the doors to legal proceedings of detainees around the nation, the American Civil Liberties Union today filed a lawsuit on behalf of two local newspapers and Rep. John Conyers, D-MI, saying that a categorical block on public access to immigration hearings is unconstitutional and un-American.
"This isn’t a matter of Haddad’s innocence or guilt that question is for the courts to decide. But if hearings of this nature are being conducted in secret, how can we be sure that our justice system is really working and that detainees are being treated fairly?” said Kary Moss, Executive Director of the ACLU of Michigan.
The lawsuit was filed in federal district court here by the national and state offices of the ACLU on behalf of Rep. Conyers, the Detroit News, and the Metro Times, an alternative weekly. They were among hundreds turned away from three recent deportation hearings in the case of Rabih Haddad, a Muslim community leader from Ann Arbor who co-founded an Islamic charity suspected of supporting terrorist activities.
At issue is a policy set forth in a September 21, 2001 memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department. That policy was apparently invoked to close all deportation proceedings in Mr. Haddad’s case.
Under settled First Amendment law, there is a strong presumption that court proceedings must be open to the public and members of the press,” said Steven R. Shapiro, Legal Director of the national ACLU. “The Justice Department’s policy of blanket secrecy is unconstitutional and incompatible with the values of a free society.”
Haddad was arrested on December 14, 2001, eight months after he had applied for permanent residency. Prior to the Sept. 11 terrorist attack , the INS had generally refrained from initiating deportation proceedings against immigrants living in the United States while their applications for permanent residency are pending.
The ACLU is seeking a ruling from the court by Feb. 19, the date of Haddad’s next scheduled hearing. The lawsuit also seeks access to transcripts of Haddad’s previous hearings and any other documents related to the proceedings in his case. Moss said that the ACLU challenge does not address Haddad’s innocence or guilt which is “a question that must be decided by the courts.”
Today’s case is Detroit News, Inc., et al v. Ashcroft et al., filed in U.S. District Court in the Eastern District of Michigan, Southern Division. Named as defendants are U.S. Attorney General John Ashcroft, Michael Creppy, Chief Immigration Judge of the United States, Elizabeth Hacker, United States Immigration Judge.
Update: January 24, 2004, Court Denies Government Request to Rehear Closed Immigration Hearings Case
The Court denied the government's petition for a rehearing in the ACLU's successful challenge to the government's blanket policy of conducting secret deportation hearings in post-9/11 cases.
Last August, a unanimous three-judge panel of the appeals court struck down the policy, declaring in a much-quoted decision that "democracies die behind closed doors." If the government chooses to pursue the case, it now has 90 days from today to file a petition for certiorari with the United States Supreme Court.
The ACLU has also challenged the government's secrecy rules on behalf of a group of New Jersey newspapers. In that case, the Third Circuit Court of Appeals in Philadelphia upheld the government's secrecy policy and recently denied an ACLU request for a full court rehearing.
By reinforcing a split between the Circuits, today's order by the Sixth Circuit increases the likelihood that the Supreme Court will have the final say on the legality of secret deportation hearings. The deadline for filing a petition for certiorari from the Third Circuit decision is the first week of March.