WHEN A FEDERAL judge in Michigan ruled earlier this year that the Justice Department's policy of blanketing its post-9/11 immigration cases in secrecy could not be squared with the open government practiced in this country, we offered a modest suggestion: Don't appeal. The government, however, pushed on. In the months since, a second district court -- this one in New Jersey -- has issued a similar ruling (which the government also appealed). And now, a unanimous panel of the 6th Circuit Court of Appeals -- ruling in the Michigan case, which concerns a man named Rabih Haddad -- has also determined that the systematic closure of 9/11-related cases violates the First Amendment. "The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door," wrote Judge Damon Keith for the court. "Democracies die behind closed doors."
No more judges should have to rule on this obnoxious policy; it's time that the Justice Department got the message. In the wake of the attacks, authorities rounded up large numbers of Arabs and Muslims whose immigration status had been revealed as deficient in the context of the terrorism probe. Many of these people surely had nothing to do with terrorism. Yet the government slapped on their "special interest" deportation proceedings a particularly rigid set of rules: "no visitors, no family, no press." The cases are kept off the books. While they involve no classified information, they officially -- at least in public -- don't exist.
The government contends that the secrecy is needed to prevent the revelation of information concerning the direction of the investigation -- information including who has been arrested, as well as specific facts that might be disclosed within a given proceeding. But department officials have also argued that the secrecy isn't total, because lawyers for the accused get full access to the proceedings and are entitled to talk about them. As the court pointed out, the ability of the potential deportees to communicate with the outside world -- through their lawyers, family and the press -- renders any secrecy ineffective, as the most sensitive material can be disclosed anyway. It is hard to imagine that those few detainees who are actually al Qaeda operatives need open proceedings to make their capture known.
The public, however, does need open proceedings to get a sense of what its government is doing. And the fact that lawyers can report on the subject does not solve the problem; the public's access to important governmental proceedings is not served by permitting biased secondhand reporting by advocates for one side. If specific information needs to be protected, immigration judges are free to close the proceedings. But that determination must be made on a case-by-case basis, not in advance for an entire group of cases. As Judge Keith put it, "When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment . . . protected the people against secret government." He's right; the Justice Department should stop litigating and accept it.