[ OUR OPINION ]
Secrecy of post-Sept. 11
hearings is too sweepingMOST of the 1,200 people rounded up by the Justice Department following Sept. 11 have been released, but questions remain about the secrecy and the government's methods in the handling of those cases. Attorney General John Ashcroft has maintained that his department can take pretty much any measure it wishes in the context of war. The courts finally, and properly, have begun to question that authority.
THE ISSUE A federal judge in Washington, D.C., has ordered the government to disclose the identities of people detained in the aftermath of Sept. 11.
The urgency in the aftermath of the World Trade Center and Pentagon attacks brought few complaints about the government's detention of people suspected of violating immigration laws, being material witnesses to the attack or fighting for the al-Qaida forces. While the number of detainees has dwindled to fewer than 200, concerns about secrecy and denial of legal representation grow with each day they are held without charges. (As few as two of the remaining detainees are regarded as material witnesses.)
Less than two weeks after the September attacks, Michael J. Creppy, the nation's chief immigration judge, issued instructions to hundreds of judges that more than 600 "special interest" immigration cases be handled secretly -- "no visitors, no family and no press" -- including whether a case was even on the docket. Creppy's main argument is that immigration hearings are not really trials so can be ordered to be conducted secretly.
Federal judges in New Jersey and Michigan have ordered all deportation proceedings to be open to the public. However, while the New Jersey ruling is on appeal, the U.S. Supreme Court has blocked it from taking effect.
U.S. District Judge Gladys Kessler of Washington, D.C., last week ordered that the identities of most detainees be disclosed under the Freedom of Information Act. "Secret arrests are a concept odious to a democratic society," she wrote. Other judges have sided with the government, and the issue is likely headed for the U.S. Supreme Court.
The rationale for conducting proceedings in secret is sometimes called the mosaic theory. "Bits and pieces of information that may appear innocuous in isolation can be fit into a bigger picture by terrorist groups," says Dale L. Watson, the FBI's executive assistant director for counterterrorism and counterintelligence.
While true, that does not justify the sweeping policy that the Justice Department has put into effect. Instead, on a case-by-case basis, government prosecutors should be required to present to a judge the reasons, in the context of the mosaic that it has constructed, for denying suspected immigration violators, material witnesses or terrorists the constitutional rights afforded all other criminal suspects.
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