Bush administration faulted for secret hearings

Government rebuked for tactics after Sept. 11

August 27, 2002|By NEW YORK TIMES NEWS SERVICE

The federal appeals court in Cincinnati declared yesterday that the Bush administration acted unlawfully in holding hundreds of deportation hearings in secret, based only on the government's assertion that the people involved might have links to terrorism.

The decision, which was laced with stinging language questioning the administration's commitment to an open democracy, is the first major appellate ruling on the government's legal tactics concerning the events surrounding Sept. 11.

"Democracies die behind closed doors," wrote Judge Damon J. Keith for the unanimous three-judge panel of the 6th U.S. Circuit Court of Appeals. The Bush administration has sought, the panel said, to place its actions "beyond public scrutiny."

"When the government begins closing doors," the panel continued, "it selectively controls information rightfully belonging to the people. Selective information is misinformation."

Barbara Comstock, a spokeswoman for the Justice Department, said the government had not decided whether to appeal.

"The Justice Department has an obligation to exercise all available options to disrupt and prevent terrorism within the bounds of the Constitution, and will review today's opinion in light of our duty to protect the American people," she said in a statement.

The case was brought by four Michigan newspapers and Democratic Rep. John Conyers Jr. of Michigan. They sought to attend deportation hearings concerning Rabih Haddad, a Muslim cleric who had overstayed his tourist visa.

Haddad, a native of Lebanon and a resident of Ann Arbor, Mich., is the founder of Global Relief Foundation, a Muslim charity whose assets were frozen after it came under federal scrutiny.

In April, a federal district judge in Detroit rejected the government's argument that it should be allowed to decide which hearings must be closed without presenting arguments and evidence to immigration judges. The judge, Nancy G. Edmunds, ruled that future hearings in Haddad's case must be open, and the government has released transcripts of the sealed hearings. Edmunds was appointed by President George Bush.

In similar decisions that have yet to be tested on appeal, trial court judges in Newark, N.J., and Washington have also recently ordered the government to open hearings and release information about people held in connection with terrorism investigations.

According to information provided by the Justice Department last month, 752 people were detained on immigration violations in connection with Sept. 11 investigations. As of late June, 81 remained in custody. The rest were released or deported.

The appeals court in Cincinnati affirmed Edmunds' decision with unusual speed, issuing its decision less than three weeks after it heard oral arguments.

"The panel was offended by the government's attempt to hide behind national security to strip us of our freedoms," said Herschel P. Fink, who represented the Detroit Free Press in the case.

Media lawyers were unrestrained in their enthusiasm for the decision. "I want to weep, it's so good," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

Keith, who was appointed to the appeals court by President Jimmy Carter, has a history of strong opinions on civil liberties. In 1971, as a district court judge, he rejected an argument by Attorney General John Mitchell that wiretaps obtained without search warrants could sometimes be justified in the name of national security.

A broader case on the same issues will be heard by the federal appeals court in Philadelphia next month. In that case, a Newark judge ordered that all deportations nationwide be opened to public scrutiny unless the government offered proof of why secrecy was needed on a case-by-case basis.

The Justice Department may be awaiting the outcome of that case before deciding whether to appeal in the Haddad case.

Yesterday's decision applied only to Haddad's case. Its reasoning, though, is binding on courts in Kentucky, Michigan, Ohio and Tennessee and may be cited as precedent elsewhere.

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