Issue 87, Fall 2002

In an elegant tribute to open government, the Sixth Circuit Court of Appeals ruled that the government may not conduct secret deportation hearings without proving the need for secrecy—a decision which expands First Amendment rights of access to the press and the public. The case, Detroit Free Press v. Ashcroft, was brought by four Michigan newspapers and Congressman John Conyers, Jr. who are seeking to attend the deportation hearings brought against Ann Arbor resident Rabih Haddad.

Haddad, a Muslim clergyman who was born in Lebanon, was arrested in December for overstaying his visa. The government has frozen the assets of the Islamic charity he founded, but no criminal charges have been filed against him or the foundation. Haddad has been denied bail and is in government custody. He has had three hearings where the press, the public, and his family were excluded.

In April, a district court enjoined the “blanket closure of deportation hearings in ‘special interest’ cases.” On September 26th, a unanimous decision by the Sixth Circuit Court upheld the injunction. The court acknowledged the government’s compelling interest in fighting terrorism, but said the government’s practice was not narrowly tailored, because it permits “disclosure of sensitive information while at the same time dramatically restricting First Amendment rights.” The need for secrecy must be established on a case by case basis.

Writing for the Court, Judge Damon J. Keith warned that “[d]emocracies die behind closed doors….When government begins closing doors,” he said, “it selectively controls information rightfully belonging to the people. Selective information is misinformation.” “Without question,” wrote Keith, “the events of September 11, 2001, left an indelible mark on our nation, but we as a people are united in the wake of the destruction to demonstrate to the world that we are a country deeply committed to preserving the rights and freedoms guaranteed by our democracy.

“Today, we reflect our commitment to those democratic values by ensuring that our government is held accountable to the people and that First Amendment rights are not impermissibly compromised. Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy.”

As we go to press, the Third Circuit upheld the government’s position in a similar case, making Supreme Court review likely.

Meanwhile, Haddad remains in custody after a recent hearing which was open only in part, without public explanation of the need for secrecy.