October 2, 2002: Appeals Court Upholds Bush Administration Claim of Blanket Secrecy

The Third US Court of Appeals in Philadelphia rules 2-1 to uphold the Bush administration’s claim of blanket secrecy regarding immigration deportation hearings (see September 21, 2001). The ruling directly contradicts a ruling by the Sixth Appeals Court on the same issue (see August 26, 2002). Chief Judge Edward Becker, a Reagan appointee, rules that if a president or his top advisers decide that blanket closure of immigration deportation hearings is needed to protect national security, then the courts should defer to their judgment. “We are quite hesitant to conduct a judicial inquiry into the credibility of these security concerns, as national security is an area where courts have traditionally extended great deference to executive expertise.” Usually when two appellate courts conflict in their rulings, the Supreme Court settles the issue. However, the Bush administration does not appeal the loss in the other case, as the 9/11-related immigration sweeps are already concluded. In 2007, author Charlie Savage will write, “As a result, even though four of the six appeals court judges who reviewed the… directive rejected it as unconstitutional, the administration managed to create a precedent for a presidential power to impose blanket secrecy over immigration hearings that stands in forty-six states—everywhere except the Sixth Circuit’s Kentucky, Michigan, Ohio, and Tennessee.” [Savage, 2007, pp. 95-96]