 |
|
August
12, 2002, 9:00 a.m.
Shut
the Doors
Terrorism-related
alien-removal hearings should not be public.
By Victoria
Toensing
|
|
ew Jersey trial judge John Bissell, who ordered the Justice Department
to open to the public all alien-removal hearings related to terrorism,
except in very limited circumstances, made a huge — and potentially
deadly — mistake.
On the legal side,
he overlooked Supreme Court cases holding that the United States Constitution
is neither a suicide pact nor a Freedom of Information Act. On the practical
side, if the Justice Department cannot continue its longstanding (almost
40 years) discretionary authority to close these proceedings, our government's
knowledge of who is in custody, evidence linking them to terrorism, and
the methods of operation and sources who turned them in, will be handed
on a silver platter to those who want to kill us.
A group of New Jersey
media outlets challenged the directive by Chief Immigration Judge Michael
Creppy, which closed removal proceedings involving special-interest detainees,
i.e. those related to terrorism. Citing national-security concerns, Judge
Creppy directed these cases be closed to relatives, the general public,
and the press. The detainee and his counsel are not barred from attendance.
Nor are they prevented from presenting witnesses. Judge Bissell ordered
not just hearings in New Jersey, but all hearings across the United States,
opened — unless the government meets a high standard of necessity
and argues it case by case. The Supreme Court recently halted that order
until all appeals have been decided.
Never has Congress
or the Supreme Court established a right to open hearings for the non-criminal
proceeding of removing an illegal alien from our country. Post-September
11, when preventing the next attack takes precedence over investigating
past crimes, there is even more need to maintain the authority of the
executive branch to decide which hearing will be made public. The reasons
are many.
The identity of a
person in custody should not be known to the terrorists. Why? Because
they will know who is no longer available to carry out a prearranged plan
and can send a replacement. Because the detainee's relatives as well as
the detainee could be threatened, maimed or killed, thwarting any desire
to cooperate with law enforcement. Also, knowing who is in custody reveals
how he got in custody, a misstep sure to be corrected for the next cell
member.
The detainee and
his lawyer are not gagged but are free to tell of confinement. According
to the Justice Department brief filed with the Supreme Court, the "vast
majority" of special-designated aliens have chosen not to do so.
Clearly, the decision should not be left to the press to decide what information
is best divulged on behalf of the United States, our national security,
or the detainees.
A removal hearing
requires evidence to be presented to the court supporting the reasons
the detainee should be removed from our borders. Disclosing that evidence
in an open hearing not only tells the world what we know, it also announces
what we do not know. It is equally harmful to our national security for
a terrorist organization planning an attack to know that we are listening
to specific telephone numbers, as it is that we do not have access to
their communications.
Sources and methods
will certainly be compromised by public hearings. To harm national security,
the facts released do not have to be as specific as the source's name
or the method's exact nature. Even vague information, such as the timing
of our government learning of the detainee's whereabouts, is usually but
one tile of a mosaic, the full picture known only by those who are the
perpetrators. Even U.S. law enforcement may not have a full appreciation
of which piece of evidence, if disclosed, would be innocuous and which
could contribute to a successful attack. Certainly judges, who rarely
have any national security background and certainly no overview of the
September 11 investigations, have no basis for determining what information
should be protected.
Congress, when authorizing
the president to use military force, gave him the additional authority
"under the Constitution to take action to deter and prevent acts
of international terrorism against the United States." He is following
that mandate by closing these immigration hearings.
—
Victoria Toensing a former Justice Department official who created the
terrorism section, is a senior fellow for the
Foundation for the Defense of Democracies.
|
<% dim printurl
printurl = Request.ServerVariables("URL")%>
