Constitutional Law
Oct. 19, 2002
Gilded Cage
Forum Column - By Erwin Chemerinsky - Secret adjudicatory proceedings, whether in a court or an administrative setting, are inconsistent with the First Amendment and risk serious abuses. Following the Sept. 11 terrorist attacks, the Bush administration imposed secrecy in all deportation hearings involving aliens who "might have connections with or possess information pertaining to terrorist activities against the United States."
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Secret adjudicatory proceedings, whether in a court or an administrative setting, are inconsistent with the First Amendment and risk serious abuses. Following the Sept. 11 terrorist attacks, the Bush administration imposed secrecy in all deportation hearings involving aliens who "might have connections with or possess information pertaining to terrorist activities against the United States."
Under this policy, the government need not make a showing of a need for secrecy in a particular case; secrecy is automatic and not subject to challenge. The secrecy is total: The hearing is closed to press, visitors and even family; no information can be revealed about what occurred; and there can be neither confirmation nor denial that the case is on the docket or even scheduled for a hearing.
There is now a split between circuits as to whether this blanket policy of secrecy violates the First Amendment. In August, in Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002), the 6th U.S. Circuit Court of Appeals declared that the blanket secrecy policy violated the First Amendment, concluding that there is a First Amendment right of access to deportation proceedings and that total closure infringed on newspapers' right of access to them.
However, on Oct. 8, the 3rd U.S. Circuit Court of Appeals, in North Jersey Media Group v. Ashcroft, 2002 WL 31246589 (3rd Cir. Oct. 8, 2002), came to an opposite conclusion and held that newspapers do not have a First Amendment right of access to deportation proceedings that are determined by the attorney general to present significant national security concerns.
Because of the split between the circuits and the importance of the issue, it is very likely that the U.S. Supreme Court will grant review in one or both of these cases. This probably will be the first occasion for the Supreme Court to rule on the constitutionality of the government's actions since Sept. 11. Therefore, it is particularly important that the court be emphatic in holding that constitutional rights can be infringed only if the government demonstrates a compelling need and narrowly tailored means.
The Bush administration's policy of blanket closure of deportation proceedings in "special interest" cases fails this test and should be declared unconstitutional.
On Sept. 21, 2001, Chief Immigration Judge Michael Creppy issued a memorandum to all immigration judges and court administrators, explaining that "the Attorney General has implemented additional security procedures for certain cases in the Immigration Court." See North Jersey Media Group Inc. v. Ashcroft, 205 F. Supp.2d 288 (D. N.J. 2002) (describing memo).
Among other procedures, judges are supposed to close the hearing to the public and avoid disclosing any information about the case to anyone outside the immigration court. The memorandum also restricts immigration officials from confirming or denying whether any particular case exists on the docket (see, e.g., Procedure No. 5: "This restriction on information includes confirming or denying whether such a case is on the docket or scheduled for hearing.") Essentially, Creppy imposed a blanket secrecy requirement for "cases requiring special procedures."
This order is at odds with federal regulations that require openness of immigration proceedings. Specifically, 8 C.F.R. Section 3.27 provides: "All hearings, other than exclusion hearings, shall be open to the public, except that: (a) Depending upon physical facilities, the Immigration Judge may place reasonable limitations upon the number in attendance at any one time with priority being given to the press over the general public; and (b) For the purpose of protecting witnesses, parties, or the public interest, the Immigration Judge may limit attendance or hold a closed hearing."
Additionally, 8 C.F.R. Section 240.10(b) provides that "removal hearings shall be open to the public, except that the immigration judge may, in his or her discretion, close proceedings as provided in Section 3.27 of this chapter." There is thus a strong presumption of openness under federal regulations.
The Supreme Court has never determined whether there is a First Amendment right of access to immigration proceedings. In Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), the court held that the press and the public have a First Amendment right to attend criminal trials. The court emphasized that openness helps to ensure fair proceedings, as well as fulfilling the right of people to know what their government is doing.
In Press Enterprise v. Superior Court, 478 U.S. 1 (1986), the Supreme Court said that a two-part test is to be used in determining whether there is a right to attend government proceedings. Courts must determine whether there is a tradition of access to the proceedings and whether public access plays a significant positive role in the functioning of the particular process.
There is a tradition of open immigration proceedings as federal regulations have long required that they be open to the press and public except in narrow circumstances. Also, openness of immigration proceedings provides the same benefits as openness of criminal trials in helping to ensure a just and fair process. The court in Press Enterprise said that closure of proceedings is permissible only if it is "essential to preserve higher values and is narrowly tailored to serve that interest."
Quite significantly, both the 6th Circuit in Detroit Free Press and the 3rd Circuit in New Jersey Media Group accepted that Richmond Newspapers applies to deportation proceedings and that there generally is a First Amendment right to attend such trials. There is a long history of open immigration hearings.
The difference between the two decisions is in their appraisal of the justification for closure. The 3rd Circuit accepted the government's argument that blanket closure is justified because even seemingly innocuous information might be of value to terrorists, as they put together a "mosaic." The government's concern is with "information that might appear innocuous in isolation [but] can be fit into a bigger picture by terrorist groups in order to thwart the Government's efforts to investigate and prevent terrorism."
The 6th Circuit rejected this argument and said that the government needs to demonstrate a reason for closing particular hearings. The court explained: "While we sympathize and share the Government's fear that dangerous information might be disclosed in some of these hearings, we feel that the ordinary process of determining whether closure is warranted on a case-by-case basis sufficiently addresses these concerns."
The Supreme Court should affirm the 6th Circuit and reverse the 3rd Circuit, holding that blanket secrecy is inconsistent with the First Amendment. As Judge Anthony J. Scirica observed in his dissent in the 3rd Circuit: "At issue is not whether some or all deportation hearings of special interest aliens should be closed, but who makes that determination."
The Bush administration claims that it is for the executive branch alone to decide when to close proceedings. But that cannot be right. Blanket secrecy is unnecessary and undesirable.
First, the government never has explained or justified why it cannot make a showing in particular cases as to the need for closure. Blanket closure is tremendously overbroad and will keep countless proceedings secret where there is no possible need for such confidentiality.
The government's "mosaic" argument, that innocuous information might be helpful to terrorists, has no stopping point. It could be used to close not only immigration proceedings, but also even trials.
As Judge Damon Keith wrote for the 6th Circuit, under this argument, "The government could operate in virtual secrecy in all matters dealing, even remotely with 'national security,' resulting in wholesale suspension of the First Amendment." Thus, if the government cannot articulate some need for secrecy in a particular case, then there should not be closure.
Second, there are grave risks to complete secrecy. The Supreme Court has recognized that the presence of the press and the public is a crucial check on abuses. The 6th Circuit observed that "[a] government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of the Constitution. ... Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy."
Undoubtedly, the Bush administration would prefer that its actions to deport immigrants be conducted completely in secret without any scrutiny from the press or public. But there is a long tradition of open deportation proceedings. Immigrants, who lack political power in the system and often resources, most need the protection that openness can provide.
The choice is not between complete openness and complete secrecy. The best approach is to allow closure in specific cases where the government shows a need for secrecy. The Bush administration's policy of blanket closure is at odds with the most basic precepts of the First Amendment and democracy.
Erwin Chemerinsky is visiting professor at Duke Law School and Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.
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