Mum's the word

October 11, 2002

A FEDERAL APPEALS court in Pennsylvania has endorsed a direct assault by the government on democratic traditions and practices -- by approving secret deportation hearings -- in order to forestall the potential release of information that might be helpful to terrorists if those hearings were open.

The court weighed the strengths of an open society against a purely speculative fear, and came down on the side of fear.

A group of newspapers in New Jersey had sued the government in an effort to stop the practice -- inaugurated after Sept. 11 -- of rounding up noncitizens in secrecy, refusing to acknowledge their confinement to the public or the press, and deporting them after Star Chamber hearings. A lower court ruled against the government, saying that hearings could be closed but only on a case-by-case basis. An appeals court in Ohio, hearing a similar case, also ruled against the government. But now the administration has gotten a friendly hearing in Philadelphia; ultimately, the issue will have to be decided by the Supreme Court.

The reasoning in this latest decision is profoundly disturbing.

The judges begin by acknowledging that ordinary criminal and civil trials are always open, and for good reasons -- to ensure fairness, to discourage perjury, to guard against "corrupt or overzealous" prosecutors and "compliant, biased or eccentric" judges.

But they then point out that deportation hearings are administrative and not judicial proceedings -- and from that they draw the conclusion, magically, that none of the above concerns apply.

They note, grudgingly, that deportation hearings have generally been open in the past. Well, they say, we're not talking about closing all hearings -- only those determined by the government to require a "special interest designation." The Soviets used to talk about "special designation," by the way, and it wasn't pretty, if you were on the receiving end of it. It, too, enjoyed a cloak of secrecy.

A public hearing could divulge all sorts of damaging information, the judges said. The plaintiffs had argued that cases could be closed as necessary when sensitive information might be revealed. But, retorted the hand-wringing judges, even the most innocuous fact could help terrorists piece together a "mosaic" picture of the campaign against them. Why, we can't even guess what might be useful to America's foes.

And there's more. What if the government held an open hearing -- and there were facts that didn't come to light? Then the bad guys would know what we don't know.

Take this spooked-out way of thinking a little bit further -- what else could be useful to terrorists? How about train timetables? Crop statistics? Weather reports? Road maps? Newspapers? They all have important information in them. Aren't they just as dangerous as open hearings?

If America is going to squander its democratic heritage, we say -- why go halfway?

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