BUSH ADMINISTRATION IS A GOVERNMENT OF INSURRECTION

By Charles Lane
Washington Post Staff Writer
Tuesday, August 27, 2002; Page A01


A federal appeals court ruled yesterday that the press and public must be allowed to witness immigration hearings for suspects detained in the Sept. 11 investigation, strongly rebuking the Bush administration for its policy of maximum secrecy in the war on terrorism.

A three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit concluded that the news media and ordinary citizens have a constitutional "right of access" to deportation proceedings that was violated by a Sept. 21, 2001, Justice Department order that closed hearings deemed of "special interest" to the terrorism investigation.

Under the order, "The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door," Senior Judge Damon J. Keith wrote in the opinion for the court. "Democracies die behind closed doors. 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."

The ruling in the case of Michigan activist Rabih Haddad marked the first time since Sept. 11 that a major component of the Bush administration's legal approach to the anti-terrorism campaign has been declared unconstitutional at the appeals court level, which is a step below the Supreme Court in the federal judicial hierarchy.

The 6th Circuit's ruling is not the last word on the issue. The Justice Department, which had argued that there is no right of access to administrative hearings such as those conducted by immigration judges, may appeal the case either to the full membership of the 6th Circuit or directly to the Supreme Court.

"The Justice Department disagrees with the Court's conclusion that the Department's guidelines for determining which proceedings should be closed are too broad," said Barbara Comstock, a spokeswoman for Attorney General John D. Ashcroft. "The Justice Department has an obligation to exercise all available options to disrupt and prevent terrorism within the bounds of the Constitution and will review today's opinion in light of our duty to protect the American people."

Department lawyers also might wait to shape their full legal strategy until the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit decides a similar case.

Solicitor General Theodore B. Olson has characterized the issue as "touching on the nation's very ability to defend itself against the continuing threat of a hostile attack from myriad and unknown sources."

Under the "Creppy memo," issued by chief immigration judge Michael J. Creppy on Sept. 21, 2001, the Justice Department considers all immigration hearings involving terror suspects off-limits to the press and public, including the detainee's family.

The most minor disclosure of information could help terrorist groups understand how much intelligence information the government has, Justice Department officials have said, undermining the anti-terror effort.

But Keith wrote that the government had failed to show that secrecy was necessary to protect national security in every case.

"Without question," he wrote, "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."

If the 6th Circuit's approach were to prevail, current and future deportation hearings would be presumed open, unless the government could convince a federal court that the proceeding had to be completely or partially closed to protect sensitive intelligence.

More than 750 of the 1,200 people detained after Sept. 11 were held on immigration charges. Most have already been deported, released or criminally charged, leaving fewer than 100 in custody, according to the government's latest figures.

Yesterday's ruling does not apply to another small group of detainees who are being held as material witnesses. Only one detainee in custody in the United States, Zacarias Moussaoui, has been formally charged as a conspirator in the Sept. 11 attacks that took more than 3,000 lives in New York, Washington and Pennsylvania.

Civil liberties groups praised the ruling as a strong indication that the courts are concerned that the administration has laid claim to unchecked power in the name of protecting national security.

"The court's opinion reaffirms that civil liberties must be protected during all times, including times like this, and that public scrutiny of executive branch activity is particularly important where you have a vulnerable group of people who are facing a loss of liberty and may be without counsel," said Lee Gelernt, a senior staff attorney at the American Civil Liberties Union.

Haddad, 41, was charged with overstaying a tourist visa. He was arrested Dec. 14, the same day that federal agents raided the Illinois offices of the Global Relief Foundation, an Islamic charity that Haddad helped found and that the U.S. government suspects of links to terrorists. He is being held in Chicago without bail.

In court papers, U.S. officials have accused Haddad of ties to groups and individuals associated with al Qaeda. Supporters, including Rep. John Conyers Jr. (D-Mich.), who was denied access to one of Haddad's closed hearings, say Haddad could be a victim of an overzealous government crackdown.

Haddad, joined by Conyers and four Michigan newspapers, sued in federal court earlier this year and convinced a judge that the restrictions imposed by Creppy's memo were unconstitutional. The government appealed that decision to the 6th Circuit.


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