- The Washington Times - Wednesday, September 4, 2002

Our war on global terrorism demands statesmanship and long-headed wisdom of the highest order.

A delicate balance must be maintained between thwarting re-enactments of September 11 and freedoms pivotal to flourishing self-government and individual rights. Enlightened decisions by the Bush administration are more urgent than in any predecessor presidency engulfed in war because defeating international terrorism has no self-evident or consensus endpoint.

Thus, emergency powers assumed in its name can be expected to continue for decades, not to end in a few years with unconditional surrender or the military occupation of an enemy nation.

The trademark of the Bush administration, however, has been overreach, not balance. The latest example is its demand for blanket secrecy of deportation proceedings in Detroit Free Press vs. Ashcroft without the bother of case-by-case showings of a national security need.

Secrecy for the sake of secrecy is heresy to fundamental democratic values. On Sept. 21, 2001, Chief Immigration Judge Michael Creppy directed all U.S. immigration judges to close all cases the executive branch unilaterally labels "special interest." Closure means excluding the press and public, including family members and friends. It further means withholding the record of the deportation proceeding from everyone except the deportee's attorney or representative, who can gain access only if the file is unclassified. Additionally, whether a case has been docketed or scheduled for a hearing can neither be confirmed nor denied.

The Creppy directive was challenged under the First Amendment in the special interest case involving Rabih Haddad, removable for overstaying his tourist visa and suspected of funding terrorist organizations through an Islamic charity.

Mr. Haddad, several newspapers and Rep. John Conyers, Michigan Democrat, claimed a constitutional right of access to deportation proceedings subservient only to a demonstrable and strong government need for secrecy. Government in the sunshine, it was said, is the constitutional presumption in a self-governing nation naturally worried over government abuses. The presumption should bow only when reasonably necessary to safeguarding the security of the nation and its citizens from terrorist abominations.

The Bill of Rights is no suicide pact. The Creppy directive succumbed to the First Amendment in the district court, and fared no better in the unanimous panel decision of the U.S. 6th Circuit Court of Appeals in Detroit Free Press vs. Ashcroft. Writing for the panel, Judge Damon J. Keith saluted compelling government interests in secrecy that would justify subordinating a First Amendment right of access to terrorism-linked deportation adjudications. A detainee's public identity could clue terrorist organizations to his associates or potential witnesses for intimidation or harm; eliminate his utility as an informant; and, signal to our terrorist enemies the direction and progress of an investigation and the need to replenish a terrorist cell.

Further, publicity of the name, place and date of an arrest of a deportee might invite terrorist organizations to confound the proceeding by manufacturing false evidence. Seemingly innocuous evidence could fill in an intelligence jigsaw puzzle for terrorists and facilitate their evasion of detection.

Finally, what evidence the government does not present at the deportation hearing might be reassurance to terrorists that their planned villainies remain unjeopardized.

On the other hand, Judge Keith explained, public access to deportation proceedings is no mindless celebration of a public right to know. As the U.S. Supreme Court preached in Richmond Newspapers Inc. vs. Virginia (1980) in acknowledging a right of access to criminal proceedings, publicity deters judicial and prosecutorial misconduct or bias and witness perjury; it inspires public confidence in the administration of justice; and it may pinpoint a need for procedural or substantive reforms.

Accordingly, deportation adjudications should be closed only when the government proves on a case-by-case basis how openness would seriously compromise citizen safety or national security.

The Bush administration objected that hearings to determine whether the closure threshold was satisfied would themselves identify deportees and thus aid terrorist organizations. But deportees or their counsel can make their identities known to the public in any event. Moreover, close-knit terrorist cells are likely to know quickly when a member has disappeared into government custody.

And not every open deportation proceeding will clue terrorists on the loose about the full store of government knowledge concerning their identities and operations. In Mr. Haddad's case, for instance, deportation requires proof only that he remains in the country despite expiration of his tourist visa.

The Bush administration also urged that knowing when facially innocuous information could be a key link in the information base of a terrorist organization was unknowable and thus justified categorical closures. But as the Supreme Court retorted to a parallel argument concerning warrantless domestic security wiretaps in United States v. U.S. District Court (1972), "If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is cause for [the fear]."

The federal judiciary, however, cannot long withstand executive aggrandizements and overreaching without reinforcement from Congress. Why doesn't it enact the Detroit Free Press decision as federal law? Why doesn't it rebuff by statute President Bush's claimed unreviewable power to characterize U.S. citizens as illegal combatants and to detain them indefinitely?

Won't separation of powers shipwreck if Congress cowers and cringes every time the President cries national security?

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