A "COMPLETE INFORMATION BLACKOUT," PART TWO:
Disagreement By Courts On The Closure Of Immigration Hearings Makes Supreme Court Review Likely

This is Part Two of a two-part series on the Third Circuit's historic decision to deny media access to 9/11-related immigration proceedings. Part One provided an overview of the decision. This Part will discuss more specifically the legal arguments relating to press access that were made. - Ed.

Why do veteran federal appellate judges often disagree so strongly on points of federal and Constitutional law - their very areas of greatest expertise - that the Supreme Court is ultimately required to step in and resolve the conflict?

The answer, I believe, is often that these disagreements occur in cases that not only present difficult legal questions, but also are flashpoints for underlying conflicts involving basic values and beliefs.

One case in point is the conflict between a recent decision by the U.S. Court of Appeals for the Third Circuit, and an earlier, but still recent, decision by the U.S. Court of Appeals for the Sixth Circuit on the same issue: the closure of deportation proceedings involving 9/11 witnesses who aren't U.S. citizens.

Politics cannot fully explain the divergence. Neither Court is strikingly liberal, nor is either strikingly conservative. Indeed, the Court reputed to be more conservative - the Sixth Circuit - reached the more liberal decision, ruling against blanket secrecy for the proceedings. So what's going on?

The Third Circuit/Sixth Circuit Conflict

As I discussed in Part One of this series, it is unlikely that the persons who are the subjects of these hearings are in any respect suspected of being 9/11 culprits - since if they were, the government would presumably charge them with crimes, or at least detain them indefinitely, as it has done with others.

Rather, the persons affected are probably 9/11 witnesses - perhaps neighbors, colleagues, or co-worshippers, about whom the government may have vague, but unsubstantiated suspicions. Nevertheless, the government has asserted that unless the hearings are uniformly closed, national security will be imperiled.

The Third Circuit allowed blanket closure of the hearings, even while conceding that it amounted to a "complete information blackout"; the Sixth Circuit did not, allowing individual immigration judges to make the closure decision on a case-by-case basis instead.

The Panels Agreed Even on the Many Points the Government Disputed

The central question both three-judge panels addressed was, as the Sixth Circuit described it, "whether the First Amendment affords the press and public a right of access to deportation hearings" - or, as the Third Circuit almost identically described it, whether there is "a First Amendment right to attend deportation proceedings."

Moreover, both panels assumed that the key Supreme Court First Amendment decision in Richmond Newspapers Inc. v. Virginia, decided in 1980, was the controlling precedent - even though the government argued it was not. (Richmond Newspapers held that the press and public have a First Amendment right to attend criminal trials).

The panels also agreed that under Richmond Newspapers, an important question courts making closure decisions must answer is whether there has been a "tradition of openness," with respect to the type of proceeding at issue.

For several reasons, a tradition of openness, according to the Court, is a strong factor suggesting openness should continue. If it goes back far enough, it suggests even the Framers of the Constitution believed such proceedings should be open. And even if the tradition is more recent - embodied, for instance, in recent federal statutes - it still gives a good way to draw a relatively objective line as to which proceedings can be closed, and which must be open. (The fact that proceedings have traditionally been open without any catastrophic bad effects is a good reason to keep them open, too.)

In the Court's view, another important question is whether public access would play a "significant positive role in the functioning of the particular process in question." If so, that is a strong reason for access to be allowed.

The Panels' First Disagreement: Is There a Tradition of Openness?

Strikingly, what first divided the panels was purportedly a historical - not a legal - inquiry: Was there, in fact, a tradition of openness for immigration proceedings - and in particular, deportation proceedings?

The Third Circuit said no: "[S]ome deportation proceedings were, and are, explicitly closed to the public or conducted in places unlikely to allow public access."

The Sixth Circuit said yes: "Although exceptions may have been allowed, the general policy has been one of openness."

Here is where the subjectivity, and difference of opinion, enter in: Does the exception swallow the rule - meaning there is no tradition of openness - or the rule swallow the exceptions - meaning there is a tradition of openness from which our country sometimes diverged?

Put another way, is an "unbroken tradition" one that never had exceptions - or one that had enough exceptions, in reasonable circumstances, that it was able over long periods of time to remain unbroken? Suppose a particular type of proceeding, for example, has been closed for only twenty years of our nation's over 200-year history - or has been closed only under certain circumstances. Is that proceeding then "traditionally open," or not?

The Third Circuit applied a high bar as to what constitutes an unbroken tradition of openness - reasoning that even geographically inaccessible proceedings have not been fully "open." The Sixth Circuit adopted a more balanced view - a few instances of closure, in its view, did not destroy what overall was a tradition of openness.

By dickering over what constitutes a strong enough tradition of openness, the courts were able to turn what should have been an objective, or at least fact-based, inquiry into a subjective, opinion-based one. No wonder they disagreed.

The Panels' Second Disagreement: Would Public Access Play a Positive Role?

The Sixth Circuit said yes: Public access would play a positive role because it acts "as a check on the actions of the Executive by assuring us that proceedings are conducted fairly and properly. The court explained that, in this context, "openness ensures the government does its job properly" - especially since "the deportees have no right to an attorney at the government's expense," so "[e]ffectively, the press and the public may be their only guardian"

The Third Circuit, however, assessed openness as having a potentially highly negative effect on the proceedings - but only because it looked outside the proceedings themselves to assess that effect, referring to "substantial evidence that open deportation hearings would threaten national security."

In this respect, the Sixth and Third Circuits were like boats that passed in the night: The Sixth Circuit worried about fairness to lawyer-less noncitizens; the Third Circuit worried about possible leaks of sensitive information (although individual judges could always close the hearings for this reason, even absent the Creppy Directive.)

The Root of the Disagreement?: Citizens Versus Noncitizens

In the end, I believe both of these disagreements touch on a single, underlying flashpoint: The question of whether citizens and noncitizens are to be treated the same, or can be treated very differently.

It was likely the Sixth Circuit's concern for noncitizens that allowed it to find that there was a tradition of openness - one that, with some exceptions, was an unbroken tradition - and that it mattered if openness helped noncitizens receive fairer immigration hearings.

In contrast, the Third Circuit's concern for citizens - and relative unconcern for noncitizens - likely caused it to raise the bar for what constitutes a tradition of openness, and elevate concerns for national security far above the ideal of fairness to noncitizens.

This question of whether citizens and noncitizens are to be treated similarly, or very differently, is so fundamental to our society now that it arises again and again, in different contexts - often based on the assumption that the Constitution does not apply to non-citizens, when in fact it does.

The Third Circuit consistently privileged citizens over noncitizens. It ignored the similarity of traditionally open criminal and even civil trials (usually, trials of citizens) to deportation proceedings - whereas the Sixth Circuit properly harped on the similarity, noting that they "walk, talk, and squawk" the same.

Meanwhile, in considering whether openness would have a "significant positive effect," the Third Circuit obsessed over speculative claims of harm that would come mostly to citizens, from a possible individual immigration judge's individual decision to open a proceeding that should have been closed.

At the same time, the Third Circuit undervalued concrete benefits to the lawyer-less noncitizens who now will face closed proceedings with no media scrutiny - with even their judges unable to protest publicly if the cases for deportation are weak, and even their families unable to attend.

The Sixth Circuit, in contrast, focused correctly on the increased fairness to the potential deportees that openness would ensure - even though they were non-citizens. We all know that if all of our doings were to be chronicled each day on the front page of the New York Times, our misbehavior would be far more rare. The same is true of prosecutors and judges. If we care about fairness - including fairness to noncitizens - we should care about openness too.

The Third Circuit's point of view is the same as the point of view that holds that while every American casualty is a unique tragedy, deaths of innocent civilians on the other side are merely collateral damage. Every death of any person is a unique tragedy. And every proceeding, for any person, should be one in which fairness and openness prevail.

America has always been a country that has thought itself exceptionalist - exceptionally blessed, exceptionally morally right. It is time for us to ensure that we are also exceptionally just - to set "a standard to which the wise and honest can repair."