Federal Appeals Court Declares Secret Deportation Hearings Unconstitutional

August 26, 2002

In a unanimous decision today, a federal appeals court struck down the government's blanket policy of conducting secret deportation hearings inpost-9/11 cases as a violation of the First Amendment. It is the first such decision by a federal appellate court anywhere in the country.

"We applaud this decision for recognizing the importance of the right of the press and the public to know what's going on in our courts," said Kary Moss, ACLU of Michigan executive director. "As Judge Keith said, writing for the court, 'Democracies die behind closed doors,’ and the court sent a clear message that this administration can't run a secret government." 

Under the challenged policy, the press and public (including family members) were automatically excluded from any deportation hearing designated by the Justice Department as a "special interest case."  In declaring that policy unconstitutional, the United States Court of Appeals for the Sixth Circuit emphasized the value of open proceedings and stressed that any legitimate security concerns must be addressed on a case-by-case basis and not through a categorical closure order. 

According to the Court opinion, "The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty....the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them 'special interest' cases.  The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door." 

Lee Gelernt, Senior Staff Counsel with the National ACLU Immigrants Rights Project, who argued the case before the Appeals Court said, "The court's opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny." 

The lawsuit, Detroit News, Inc., et al v. Ashcroft et al, was filed by the national and state offices of the ACLU on behalf of Representative John Conyers Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad. 

The plaintiffs in the Detroit News case were represented by Lee Gelernt, Lucas Guttentag, and Steven R. Shapiro of the national ACLU; Michael J. Steinberg and Kary Moss of the ACLU of Michigan, Leonard M. Niehoff of Butzel, Long, P.C.; and John J. Romayne, III of Kasiborski, Romayne & Flaska. 

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