VOICES
Suing Ashcroft for Access
Blanket secrecy is not the answer
John Ashcroft probably never imagined that his corrosive, secretive policies would be challenged by a small, little-known daily in northern New Jersey. But if he'd realized that the 38,500-circulation Herald News covers Paterson, he might have guessed.
A vibrant, gritty city fifteen miles west of Manhattan, Paterson boasts one of the nation's largest Palestinian enclaves and an active Muslim community. So when the Department of Justice began jailing Arab and Muslim "terror suspects" for minor immigration violations last fall, it was our readers' brothers, neighbors, and friends who were targeted. We had an obligation to report on where they were being held and why.
In addition, the Passaic County Jail in Paterson had become a major holding station for immigrants snagged in the terror probe. Between September and December 2001, the number of immigration detainees increased tenfold to nearly 400. The feds pay $77 per day per immigration detainee. Who were these people filling our county coffers? It was our job to find out.
But the Justice Department, citing national security concerns, refused even to release their names. Deportation hearings, historically open to the public, were held secretly at the behest of Chief Immigration Judge Michael J. Creppy, an Ashcroft underling. Dated September 21, 2001, the "Creppy memo" further ordered court personnel to keep such hearings off the public docket and neither confirm nor deny their existence.
The government's obsessive secrecy made it hard for us to report this story. Because we were barred from observing deportation hearings, we had to rely on lawyers and activists to tell us about the detainees — their names, where they were arrested, what immigration laws they might have violated, how long they had been jailed, and so on. But even these secondary sources couldn't tell us about everyone affected because they were struggling themselves to learn who was being held. Without knowing the detainees' names, lawyers were blocked from contacting them to offer their services. Thus many immigrants languished in prison without anyone knowing — or telling — their stories.
What our reporting did reveal was that some immigrants, their bond denied or set prohibitively high, spent as long as nine months in jail while government officials fished for criminal or terrorist ties. By late August, fifty-two of the original 763 "terror suspect" detainees were still in custody, according to figures reluctantly released by the Justice Department. The others, cleared of terrorist involvement, had been deported or released.
The government argues that blanket secrecy is needed to stave off the terrorist threat. Information about who is being held and why could provide a "road map of the Department of Justice's investigations and assist . . . efforts to harm Americans," a department spokesman said.
The fact is that immigration judges already had the power to close certain hearings. Federal regulations provide for closing hearings to protect "witnesses, parties, or the public interest." And even during public hearings, judges can hear classified information in chambers — thereby averting genuine security breaches. Federal judges who've ruled against the categorical closure of all "special interest" hearings, as the FBI has labeled them, do not assert that all such hearings should be open; they simply say that each case should be weighed individually.
"Democracies die behind closed doors," wrote Judge Damon J. Keith of the United States Court of Appeals for the Sixth Circuit in Cincinnati, in an August decision stemming from the secret deportation hearings of Rabih Haddad. Co-founder of an Islamic charity shut down last December, Haddad challenged the Justice Department's blanket secrecy in court, as did several newspapers, a local congressman, and the American Civil Liberties Union. On October 1, after the Sixth Circuit declared the secret hearings unconstitutional, the government held a new, public bond hearing for Haddad in immigration court.
In March, the New Jersey Law Journal and North Jersey Media Group, parent company of the Herald News and The Record, sued to have "special interest" hearings closed on an individualized basis only. The federal judge in Newark agreed with the arguments of the ACLU, which represented our news organizations, and ordered the government to stop enforcing the Creppy memo nationwide. On October 8, however, a two-to-one ruling by the Third Circuit Court of Appeals in Philadelphia overturned that decision, concluding that national security concerns justify conducting all terrorism-related deportation hearings in secret. With two circuit court decisions in conflict, North Jersey Media Group, et al. v. Ashcroft, et al. may very well reach the Supreme Court — all the way up from Paterson.
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