August 26, 2002: Appeals Court Rejects Government’s Blanket Secrecy Claim in Immigration Proceedings

The Sixth US Court of Appeals in Cincinnati unanimously rejects the Bush administration’s claim for blanket secrecy regarding immigration court proceedings (see September 21, 2001). In a 3-0 ruling, the court rules in Detroit Free Press v. Ashcroft that the administration’s secret deportation-hearing policy goes too far in restricting the public’s right to know what the government is doing. Selectively closing individual deportation hearings for national security reasons might be justifiable, the court rules, but the government cannot simply sequester all such hearings. Appeals court judge Damon Keith, a Carter appointee, writes: “In an area such as immigration, where the government has nearly unlimited authority… the press and the public serve as perhaps the only check on abusive government practices.… The executive branch seeks to uproot people’s lives, outside the public eye and behind a closed door. 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. When the government begins closing doors, it selectively controls information rightly belonging to the people. Selective information is misinformation. The Framers of the First Amendment did not trust any government to separate the true from the false for us. They protected us against secret government.” Keith is well known for his widely cited ruling of 30 years before against a government program of warrantless wiretapping (see June 19, 1972). [Savage, 2007, pp. 95] Another appeals court will rule in favor of the Bush administration in a separate lawsuit on the same issue (see October 2, 2002).