Ten days after the September 11, 2001 terrorist attacks, Chief Immigration Judge Michael Creppy issued a memo to all immigration judges requiring them to close proceedings to the public and press whenever the Justice Department advised them to do so. The order was challenged in two lawsuits, which came to opposite conclusions.

In a unanimous opinion issued in August 2002, a three-judge panel of the Sixth Circuit Court of Appeals held that the Creppy memo violated the First Amendment rights of the press and public to attend deportation hearings. The government could move to close particular hearings, the court said, by making a showing of security concerns to the judge, but it could not rule a whole class of cases out of bounds without any showing of need.

In October 2002, though, the Third Circuit Court of Appeals upheld the Creppy directive by a vote of two to one. The opinion stated that even though a Supreme Court decision had held that the First Amendment barred closed trials, because trials had been traditionally public, there was an insufficient tradition of open immigration trials to be governed by that ruling.

In March 2003, the American Civil Liberties Union, on behalf of the New Jersey newspapers who were the appellees in the Third Circuit case, filed a Petition for a Writ of Certiorari, urging the Supreme Court to review the decision.

"The First Amendment does not permit secret trials on the unilateral say-so of the Attorney General," said Steven R. Shapiro, Legal Director of the ACLU, in a statement. "The Justice Department's sweeping policy of secret hearings deprives the public of the basic information it needs to judge our government's actions."

In April 2003, the Justice Department filed a brief asking the Supreme Court to throw out the appeal. "The Creppy Memorandum was issued to protect the national security and public safety by preventing terrorist organizations like al Qaeda from learning about the government's ongoing terrorism investigation," it stated.

On May 27, 2003, the U.S. Supreme Court declined to review the Third Circuit decision, leaving intact the right of the government to conduct secret immigration hearings in this case. The law on this issue remains unsettled outside the Third Circuit, however, since the government has not sought Supreme Court review of the Sixth Circuit Court of Appeals case, which found the same policy unconstitutional. For more detailed background on the two cases, see this synopsis from the Center for Constitutional Rights.

• Creppy Memorandum, September 21, 2001.
• Sixth Circuit Opinion in Detroit Free Press, et al., v. John Ashcroft, et al., finding that the Creppy directive violated the First Amendment rights of the press and public to attend deportation hearings, August 26, 2002.
• Third Circuit Opinion in North Jersey Media Group, Inc. v. Ashcroft, finding that deportation hearings can be closed for national security, October 8, 2002.
• Petition for a Writ of Certiorari filed by the American Civil Liberties Union, requesting that the Supreme Court review the Third Circuit Court opinion finding that deportation hearings can be closed, March 3, 2003. Go directly to the PDF file here.
• Brief submitted by the Department of Justice to the Supreme Court requesting that the ACLU's petition for a write of certiorari should be denied, April 25th, 2003.
• First Amendment to the U.S. Constitution.
• Summaries and Analyses of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996:
  • From Findlaw
• Findlaw's database of cases related to the war on terrorism, searchable by topic or alphabetical order.

• American Civil Liberties Union
• Center for Constitutional Rights
• The Freedom of Information Center's archive of stories on secret hearings.
• Freedom Forum
• National Immigration Law Center
• U.S. Department of Justice

Written June 25, 2003; Last updated January 7, 2007.