|U.S. Newspapers and Rights Groups Challenge Secret
Await Supreme Court Decision
Ten days after the September 11, 2001 terrorist
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 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
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
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:
database of cases related to the war on terrorism, searchable by
topic or alphabetical order.
June 25, 2003; Last updated January 7, 2007.