A "COMPLETE INFORMATION BLACKOUT," PART ONE:
A Federal Court Of Appeals Decision Denies Media Access To All Immigration Proceedings Relating To 9/11 Witnesses

By JULIE HILDEN


julhil@aol.com
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Tuesday, Oct. 15, 2002

This is Part One of a two-part series on the Third Circuit's historic decision to deny media access to immigration proceedings involving those claimed to have a connection to, or knowledge of, the 9/11 terrorist attacks. This column provides an overview of the decision and the government directive that led to the case. Part Two will discuss more specifically the legal arguments relating to press access that were made. - Ed.

The case arose because Chief U.S. Immigration Judge Michael Creppy had imposed what the Third Circuit described as a "complete information blackout along both substantive and procedural dimensions," with respect to certain immigration proceedings.

In those proceedings, the government sought to deport from the U.S. aliens it deemed to be of "special interest." It has said that it believes these persons may have a connection to, or knowledge of, the September 11 terrorist attacks.

According to the Creppy Directive, even the immigration judges themselves cannot speak about the proceedings - so if a judge thinks a particular alleged immigration violation was trumped-up or outrageous, we will never know it. In addition, not only press and the public, but the detainees' family members (including U.S. citizens) are barred from attending the proceedings.

Perhaps most strikingly, the Directive applied broadly to every single such proceeding, regardless of the detainee and the violation. It did not require - as many observers have suggested would be preferable - a case-by-case showing as to the risk of media, public, and even family access to a particular proceeding. The most dangerous detainee will be treated exactly the same as the most innocuous, according to the Directive.

Nevertheless, the Third Circuit declined to hold unconstitutional this exceptionally broad directive. In doing so, the panel majority issued a decision that had much more to do with policy than law.

Plainly a Policy Decision From the Third Circuit's Chief Judge Becker

The author of the Third Circuit's two-judge majority decision was Chief Judge Edward Becker, widely respected as one of the leading lights of the federal appellate bench. (Judge Greenberg joined the decision; Judge Scirica dissented).

Unfortunately, the decision's reasoning does not meet the high standard Judge Becker usually sets. Rather, it verges frequently - and surprisingly blatantly - into the type of policymaking that ought to be reserved for the executive and legislative branches of our government. Indeed, sadly, it may be the kind of blot on a judge's record that will haunt Becker until the end of his career

In the end, Judge Becker's opinion boils down to the mere policy judgment that terrorism is simply too, well, terrifying to allow these proceedings to be open. Like the Bush Administration, he seems to believe that any risk that openness could lead to more terrorism is too high. (Of course, if taken to an extreme, this position would suggest, for instance, that the entire Congressional debate on Bush's proposed war resolution should be closed, too, on the ground that it might reveal the Administration's war strategy.)

Judge Becker accepts this declaration at face value - without any critique of either the declaration's vagueness on this point, or the government's failure to explain why a case-by-case approach to closure would not be sufficient.

But federal judges should not simply swallow Executive Branch claims whole. It is their role to carefully examine them, assess their plausibility, and question whether they truly justify measures as broad as the Creppy Directive.

Ignoring Other Federal Courts' - and Even Prior Third Circuit - Precedent

Chief Judge Becker pays little, if any, heed to the rulings of other federal appellate courts. For instance, he quickly dismisses the fact that "[t]he only [other] Circuit to deal with these issues" - the U.S. Court of Appeals for the Sixth Circuit - "has resolved them in favor of the media."

Nor does he show much respect to the opinions of his colleagues on the same court. Judge Becker at least concedes that "we [the panel] must yield to the prior precedent of" the Third Circuit itself. But he also stresses that the panel's members "are not bound by" every word of those prior precedents. Instead, those that can be passed off as "dicta" (that is, explanation that does not affect the result) can be disregarded, he stresses.

One of the precedents by which Judge Becker claims the panel is not wholly bound is the 1999 Third Circuit decision in Whiteland Woods L.P. v. Township of West Whiteland. There, the court held a developer had a First Amendment right not only to attend, but also to videotape, a town Planning Commission meeting.

The decision is significant because such a meeting, like a deportation hearing, is a government proceeding but not a trial. (The right of media and public access to trials has been long established, so the fact that a proceeding resembles a trial is always helpful to media groups seeking access to it.)

Indeed, a deportation hearing is obviously far more like a trial than a Planning Commission meeting is. Yet even at the Planning Commission meeting, according to Whiteland Woods, access was still allowed. Certainly, then, access should be allowed at deportation hearings, which threaten their subjects with what amounts to exile.

Clearly, Whiteland Woods - a decision issued only three years ago by a panel of his colleagues on the Third Circuit - troubles Judge Becker, for he mentions it several times. His response? To dismiss it. While the decision contains some "potentially misleading language" (carefully crafted by his fellow judges), it still, according to Judge Becker, somehow does not apply.

Judge Becker also admits in the course of the opinion that, in his view, the Third Circuit in this case is "ineluctably embroil[ed]" in "the great national dilemma" of "the eternal struggle between liberty and security." And he notes that he believes that "the primary national policy must be self-preservation" - with no mention of how blind allegiance to this policy, no matter how remote the risk, may at times conflict with vital individual rights.

Indeed, Judge Becker does not even seem to recognize that individual rights are involved. He argues in his opinions that the rights of the detainees whose cases are presented to the media are not even really at stake, for "these aliens are given a heavy measure of due process." Any immigration lawyer would laugh out loud at this.

However, in support of his contention, Becker points only to the levels of appellate review by which the aliens can plead their case to two higher level immigration courts - one of which does not even need to accept the case if it does not want to - and the rare habeas corpus petition. But habeas corpus remedies are narrowly limited, and in the current climate, the pressure on judges to find against terrorism-related detainees is immense.

Sadly, it seems that what matters to Judge Becker is not what courts say, but what the executive has said - and what the best policy prescription may be. Indeed, unusually and disappointingly, Becker's decision not only quotes but actually relies upon a Washington Post OpEd on the issue by commentator Michael Kelly!

As Judge Becker comments, he and the other judge in the majority found Kelly's "statements powerful." That's a big compliment to Kelly, but a big faux pas by Judge Becker, in my view. Judges are not supposed to even silently be influenced by OpEds, let alone to note in their opinions how persuasive they are. As far as I know, Michael Kelly has not been nominated and confirmed to the federal bench, nor is he a lawyer for the parties.

Is the Total Information Blackout Necessary?

On its face, the blackout may sound reasonable and even necessary. But consider this: having a "connection to" or "information about" 9/11 does not make one a suspect - just a witness, and a potential one at that. One might, for instance, be an unwitting coworker or neighbor, or simply someone who attended the same mosque.

After all, wouldn't any serious 9/11 suspect be dealt with criminally or through military tribunals - not kicked out of the country so they could potentially operate abroad? The Bush Administration has shown no aversion towards indefinite detention of those it considers a true risk. Moreover, it has asserted broad authority to suspend the rights of detained aliens.

For this reason, it seems likely that the immigration proceedings do not generally deal with suspects the Administration considers truly culpable or threatening. And this likelihood, in turn, ought to cause us to question the Administration's assertion that the proceedings, if public, would leak information valuable to terrorists. If the detainees have such valuable information, why are we deporting, not interrogating or charging, them?

Deporting every alien who even met any of the 9/11 hijackers may be the safest thing to do, but it is legally (and morally) wrongful.

For one thing, it's important to realize that even good and law-abiding people can end up with minor immigration violations. Given the complexity of the immigration laws, the exceptionally bureaucratic nature of the Immigration and Naturalization Service, and the fact that many aliens cannot afford a lawyer, it is no surprise that many do not manage to fully comply with the immigration laws' demands - however conscientious they may be. Language barriers only lessen aliens' ability to interpret bureaucrat-ese that boggles the minds of even experienced lawyers.

No wonder, then, that the government closed these immigration proceedings - or that the federal district judge enjoined the government to open them up again and let the media in. It is only unfortunate that the appeals court did not agree.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume, and in French translation by Actes Sud.

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