Secret Deportation Hearings by Department of Justice:
• Contradict the Constitutional Right of Public Access
• Promote Abuses
• Are Dangerous to Democracy

-- The Association of the Bar of the City of New York

New York, N.Y. -- Secret deportation and detention hearings deprive the public of its constitutional right to know and monitor the conduct of the government, while denying immigrants due process and their right to counsel, according to a report released today by the New York City Bar Association. The City Bar instead urges that hearings be closed only when necessary for security, as determined on an individual basis. A full copy of the report – “Dangerous Doctrine” – can be found on the homepage of the Association’s website at ((www.nycbar.org))

“As Americans learn of the embarrassing and tragic abuses at Abu Ghraib prison in Iraq, we must also examine our treatment of immigrants at home,” says David Schulz, Chair of the City Bar’s Communications and Media Law Committee, which co-drafted the report with the Committee on Immigration and Nationality Law. “Unfortunately, many of the red flags that troubled the legal community regarding the treatment of detainees abroad, including holding detainees for extensive periods of time without notifying families, are being replicated at home. This creates a climate ripe for abuse and error.”

BACKGROUND
In September 2001, immigration judges were ordered to follow new procedures whenever the Attorney General deemed an immigrant to be “of special interest” (a newly created term with no basis in law). All hearings in these cases were to be closed completely, with even the existence of the proceeding kept secret. Lawyers reported that immigrants were being denied counsel, held indefinitely without charges and kept in prison even after a judge orders release. While Attorney General Ashcroft first claimed that the blanket closure of hearings was necessary because the “special immigrants” belonged to al Qaeda, later Justice Department officials privately admitted that none of the detainees were actually al Qaeda members. And the report asserts that cases were often given this designation solely based on the immigrant’s country of origin and that there had been little evidence of terrorism at these hearings.

CURRENT CASES
The Department of Justice (“the department”) has claimed that the right of public access only exists in judicial hearings and that the department is not obligated to open trials conducted solely by an Executive agency. But the courts that have ruled on this assertion -- the Sixth Circuit and the Third Circuit -- have rejected the Attorney General’s breathtaking claim that the Executive Branch was not bound by the First Amendment. While the Third Circuit ruled that the hearings could remain closed because Congress had never explicitly guaranteed public access to deportation hearings, the Sixth Circuit disagreed and explained that it “should look to proceedings that are similar in form and substance” for precedent. This court found that although deportation hearings are run by an executive branch agency, they have a profound impact on individual lives, and therefore “walk, talk and squawk” very much like a judicial proceeding. The Court ruled that deportation hearings therefore must meet similar constitutional requirements.

The Association’s report demonstrates that the reasoning of the Sixth Circuit rests on more solid constitutional ground and explains that the department should be denied the power to categorically close these hearings for the following reasons:

• Closed Hearings Deprive Immigrants of their Right to Counsel: In an immigration hearing, an alien must find and pay for a lawyer himself, even though he is often prohibited from using a phone. It often falls to family members to find an attorney, which can become impossible when that family member isn’t aware of the proceeding. Because immigration law is complicated and the government is usually represented by an experienced attorney, unrepresented immigrants are at a grave disadvantage.

• Media Coverage Can Expose Faulty Evidence Resulting In Fairer Hearings: “Recent events in Iraq and the historical record of the INS and FBI unfortunately demonstrate that our government doesn’t always act professionally when it operates without oversight,” says Claudia Slovinsky, Chair of the City Bar’s Immigration and Nationality Law Committee. The report cites an example from 1996 when the INS tried to deport six Iraqis, despite the fact that they assisted the CIA and faced near death if sent back to Iraq and Saddam Hussein. The hearings were open to the public, and media coverage exposed the egregious errors in translation and faulty evidence that led to intense pressure to end the deportation.

• Closing Hearings Alarms the Immigrant Community and Makes It Less Likely that the Community Will Come Forward In the War On Terror: “By rounding up young Muslim men for questioning, or holding them indefinitely on minor immigration charges, the Justice Department alienates precisely the people they need to blow the whistle on suspicious activity,” says Slovinsky.

• Closing Hearings Makes America a Poor Example to the World: “It has become apparent that an unknown number of detainees have simply disappeared into what amounts to a secret legal system,” according to the report. “Now the U.S. government is engaging in the behavior that it formerly condemned.” Furthermore, “Blanket closures of hearings … undercuts the American role as an international model for how justice should be administered.”

The Association of the Bar of the City of New York (((www.nycbar.org))) was founded in 1870, and is dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.

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