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| LIBERTY vs. SECURITY | |
 August 27, 2002  |
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A federal court has ruled that immigration hearings for people detained in the Sept. 11 investigation must be made public. Two legal experts discuss the decision's potential effects.
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 MARGARET
WARNER: In the wake of September 11, the Justice Department began prosecuting
immigration laws with renewed vigor. Among those caught in the web was
Rabih Haddad, a Lebanese Muslim cleric and activist in Ann Arbor. He was
arrested last December for overstaying his tourist visa, on the same day
that federal agents seized the assets of a Muslim charity he founded,
the Global Relief Foundation.
The government suspects Haddad and his foundation of terrorist ties. He's had three secret deportation hearings under closed-door procedures outlined last September 21 by chief immigration Judge Michael Creppy. But in April, in a suit brought by the ACLU and four Michigan newspapers, among others, a district court judge said the Creppy directive was unconstitutional and that Haddad's future hearings had to be open. Yesterday's third circuit ruling used strong language in upholding the lower court. "Democracies die behind closed doors," wrote senior Judge Damon Keith. "The First Amendment through a free press protects the people's right to know that their government acts fairly, lawfully and accurately in deportation proceedings." For more on yesterday's ruling and its implications, we turn to Lucy Dalglish, a media lawyer, and director of the Reporters' Committee for Freedom of the Press. While not involved directly in this case, her group is party to similar suits. And Jan Ting, a former assistant commissioner at the Immigration and Naturalization Service. He now teaches immigration and tax law at Temple University's Beasley School of Law. And welcome to you both. Lucy Dalglish, what did you think when you saw or read yesterday's ruling? |
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| Reactions to the ruling | ||||||||||||||||||||
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And I thought it was very affirming of the court process, the immigration process, and actually reassuring to the public as well. And perhaps, from my perspective, the best result is that for the first time in almost 20 years we have a decision from a significant court, the 6th Circuit, that clearly says that the media has a very important role in the democracy and informing the public. MARGARET WARNER: Jan Ting, how did you read it? JAN TING: There's so much to say about this case I really don't know where to begin. I think your viewers need to understand that prior to 1983 there were no immigration judges -- that removal proceedings were conducted by the Immigration Service itself, and it was the Reagan administration, the Reagan administration which decided, you know, it would solve a perceptual problem if we had the people deciding on the removals, different from the people catching the individuals for removal. And so they created the immigration judges. The second thing people need to understand -- and that's an illustration of the fact that I guess no good deed goes unpunished that now we have the 6th Circuit saying that because these immigration judges wear black robes and we call them judges, they become quasi judicial. But people need to understand they work for the attorney general, they're not what we call Article III courts; they're not part of the Judicial Branch. They're part of the Executive Branch, and they work for the attorney general. And the third thing people need to understand is that there is no immigration clause in the Constitution. We have a government of limited powers that can only do what the Constitution authorizes. How can the government even regulate immigration, and the answer is that 100 years ago the Supreme Court said that immigration, the power to regulate immigration springs not out of the Constitution but it springs out of our national sovereignty - kind of because we exist we regulate immigration.
Well, now I think what the 6th Circuit has done is basically overruled that body of law, and it says as much, it says in the opinion that we've never, there's no precedent for having a First Amendment argument raised in deportation proceedings, but we think that there's a new trend here and we're part of this new trend. And this is almost certainly going to be appealed to the Supreme Court. While we've had a lot of 5-4 decisions, looking at past precedent from the Supreme Court of the United States, I expect this case to be overturned. |
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| Immigration procedure | ||||||||||||||||||||
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LUCY DALGLISH: It was very sweeping. You have to understand that these proceedings have been conducted largely in the open since 1983 and before that. It was just common for the public to be allowed to witness what's going on in immigration proceedings. What this decision says is not that the Executive Branch cannot --. MARGARET WARNER: And just let me interrupt to explain to out viewer viewers because we didn't in our introduction, this immigration judge, Judge Creppy said that in these cases that arose out of 9/11 investigation that neither the press nor the public nor even members of the detainee's family would be allowed to be in the hearings. LUCY DALGLISH: Yes, and that's a departure from the way immigration hearings have been held in the past. And it's, we have a long tradition of open judicial type proceedings in this country. And what the court is doing is extending the openness, the procedure of the openness. The court recognized in this opinion that the Executive Branch still has control over who gets admitted into this country. But once someone is in this country and you decide you're going to kick them out, then certain constitutional protections kick in, including the First Amendment. And what they say is procedurally, if a court or an administrative hearing walks like a duck, squawks like a duck, it's a duck. And if you're going to do something as dramatic as taking away someone's right to be in this country, that's a fairly severe repercussion that should have some public oversight.
So I would anticipate that if any sensitive national security information were to come up, which I doubt it will, I would anticipate that there will be a motion made and individual judges will make findings saying, okay, in this particular case this portion of the hearing will be closed. MARGARET WARNER: Mr. Ting, what is wrong with that, or what would be the harm in that? As I read the decision that the court seemed to be saying the government still has a compelling case to make about national security considerations and some of these hearings, and has to do it individually. What's wrong with that? JAN TING: Well, you know, the Creppy memo was issued ten days after the September 11 attacks. If the Creppy memo turned out to be overbroad I think everyone could understand how that might be in the ten days after September 11, we didn't really know what we were up against. I don't in fact think that it is overbroad. I think it's a legitimate exercise of the government's power as recognized by the Supreme Court. The standard, which the 6th Circuit chose to apply is different than the standard which the Supreme Court has invoked in prior cases. The Supreme Court has only required the government to show a facially legitimate bona fide reason for what they are doing. And then the Supreme Court says the role of the courts is over with, you shall not look behind that facially legitimate reason for what the government is doing and you shall not balance that reason against the First Amendment. |
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| The dangers of an open hearing | ||||||||||||||||||||
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MARGARET WARNER: But let me ask you a practical question. What is the danger from the government's point of view of having these open or having to make the case on a case by case basis?
So I don't think it's a huge significant overruling of government powers here; it just specifies the way in which they have to go about exercising that power as a worst case scenario. MARGARET WARNER: Ms. Dalglish, you said you didn't really think that in these hearings, information related to terrorism and investigation have commonly come up. Why did you say that? LUCY DALGLISH: I said that because in his opinion, Judge Keith explained that in immigration proceedings, all they're trying to do is show someone entered the country, someone isn't supposed to be in the country anymore, and this person should be sent out. MARGARET WARNER: In other words they can deport someone strictly on the basis of the immigration violation. They don't have to prove the terrorist ties. LUCY DALGLISH: They don't have to prove anything about terrorism whatsoever. And, in fact, I'm assuming that these hundreds of people who have been deported, that's exactly what happened. They came in, they demonstrated that they had violated the terms of their visa, and they were gone.
JAN TING: Well, that's true; there are many grounds for removal from the United States, one of which happens to be terrorism, and there are many other criminal acts that can result in an individual's removal from the United States. What the government has said they don't want to disclose is how they gathered their evidence, who they gathered their evidence from. The government is arguing basically that we're at war here. The courts have historically deferred to the political branches of government in times of war. The courts have historically deferred to the political branches of government in the area of immigration. Both of those factors are present here. And I think it would be a great surprise for the Supreme Court to sustain this particular opinion, although as I said earlier I don't think it has enormous great implications for the way in which the government conducts removal hearings. MARGARET WARNER: All right, and we'll be following it as it moves through the courts. Thank you both very much. LUCY DALGLISH: You're welcome. JAN TING: Thank you. |
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LUCY
DALGLISH: I was overjoyed. I thought it was a marvelous decision. The
opinion itself reads like a textbook on how to run a democracy. And
it really reaffirms faith that we have that we really can get through
everything; everything we've been through in the last year is not a
reason to abandon the way we operate in this country. 
And
in that decision over 100 years ago, excuse me while I read it, the
Court said the power to expel or exclude is a fundamental sovereign
attribute, which is exercised by the government's political departments
largely immune from judicial control. As recently as 30 years ago the
Supreme Court in a case called Mandel said that as long as the government
has a facially legitimate and bona fide reason for doing what it does
in the area of immigration, courts will neither look behind the exercise
of the government's discretion nor test it by balancing the justification
of the government against the First Amendment. 
MARGARET
WARNER: All right. Lucy Dalglish, help us understand this further, and
to what degree it was a departure from immigration procedure, because
as Jan Ting just pointed out, in fact immigration judges work for Attorney
General John Ashcroft, this is all part of the Executive Branch. At
issue here was this Creppy memo, this Michael Creppy memo that was issued
on September 21. That was pretty sweeping, wasn't it from this immigration
judge? 
Now,
they are not saying in this opinion that you cannot close immigration
proceedings. What they are saying is that if you are going to close
an immigration proceeding, you have to make a very particular showing
that there is a compelling need to close a specific hearing and that
the remedy, closing the hearing, is the most narrowly tailored alternative
they have. 
JAN
TING: Well, you know, from a practical point of view, this case isn't
as significant as it seems for the reasons that Lucy just pointed out,
that if the government were to lose this at the Supreme Court, which
I don't think is going to happen, I think all the precedents favor the
government, but if the government were to lose this at the Supreme Court,
which I don't think is going to happen, I think all the precedents favor
the government, but if the government were to lose it, it would just
mean that they would have to go to the immigration judges, who after
all are the attorney general's employees, and specify on a case by case
basis why they want these immigration cases closed. 
MARGARET
WARNER: What about that point, briefly, Mr. Ting, that in these hearings
they don't have to prove terrorist ties to get rid of someone who's
overstayed his visa?