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INS Coverage
Burke, whose newspaper is a plaintiff
in the New Jersey case, on page 9.] As
The New York Times wrote in a front
page story on October 9, “the conflict
between the two courts—the only ones
to rule so far on the issue—makes it
reasonably likely that the United States
Supreme Court will consider one of
the cases.” That possibility is strong as
I write this.
The government has claimed that
Haddad, who is now seeking asylum in
the United States, was the head of the
Global Relief Foundation, an organization
Haddad claims is an Islamic charity
but that the U.S. Treasury Department
has declared is a terrorist
organization that funds worldwide terrorism.
My argument in court emphasized
that the Free Press sought only to
observe and to report, but expressed
no position on the merits of Haddad’s
deportation.
Connecting Journalism With
Democracy
Agreeing with the plaintiffs, the Sixth
Circuit Court of Appeals first acknowledged
the federal government’s “nearunrestrained
ability to control our borders,”
but the court added that “The
only safeguard on this extraordinary
governmental power is the public,
deputizing the press as the guardians
of their liberty …. Today, the Executive
Branch seeks to take this safeguard
away from the public by placing its
actions beyond public scrutiny. Against
noncitizens, it seeks the power to secretly
deport a class if it unilaterally
calls them ‘special interest’ cases. The
Executive Branch seeks to uproot
people’s lives, outside the public eye,
and behind a closed door. Democracies
die behind closed doors.”
Rejecting the government’s argument
that its plenary power over immigration
gave it the right to operate in
secret, the panel, also composed of
Circuit Judge Martha Daughtrey and
District Judge James Carr of Toledo,
Ohio, reminded the government that
“The dominant purpose of the First
Amendment was to prohibit the widespread
practice of governmental suppression
of embarrassing information.”
The court continued that “It would be
ironic, indeed, to allow the
government’s assertion of plenary
power to transform the First Amendment
from the great instrument of open
democracy to a safe harbor from public
scrutiny.” The court warned that “when
government selectively chooses what
information it allows the public to see,
it can become a powerful tool for deception.”
The court concluded that “a true
democracy is one that operates on
faith—faith that government officials
are forthcoming and honest, faith that
informed citizens will arrive at logical
conclusions …. Today, we reflect our
commitment to these democratic values
by ensuring that our government is
held accountable to the people and
that First Amendment rights are not
impermissibly compromised. Open
proceedings, with a vigorous and scrutinizing
press, serve to ensure the durability
of our democracy.”
The decision in this case also signaled
a readiness of the Sixth Circuit to
apply the First Amendment to a broad
range of other governmental information.
It rejected the government’s argument
that earlier Supreme Court
decisions had concluded that the First
and 14th Amendments do not guarantee
the public a right of access to information
generated or controlled by the
government,” going on to say that “we
believe that there is a limited First
Amendment right of access to certain
aspects of the executive and legislative
branches.”
Press Coverage After the
Sixth Circuit’s Decision
As Haddad’s deportation trial has proceeded
in public following the Sixth
Circuit decision and pending further
government appeals, facts and questions
have emerged that would have
remained secret had the press, the
ACLU, and Representative Conyers not
fought and won the case.
As I argued in court, governmental
incompetence thrives in secret. While
the exposure of unfairness to and the
protection of minorities from arbitrary
deportation proceedings are admirable
reasons for openness (the Detroit area
is home to one of the largest Arab
communities outside of the Middle
East), the exposure of governmental
incompetence is of at least equal weight.
Testimony in Haddad’s deportation
trial revealed that the government was
aware for perhaps three years that he
had traveled extensively back and forth
from Afghanistan and Pakistan to the
United States, sending money and
equipment to those areas. Yet the government
allowed Haddad to operate
freely, if illegally, in this country. Only
after the events of September 11 did
the INS—the same INS that extended a
student pilot visa for Mohamed Atta,
one of the twin tower airplane bombers,
six months after he died crashing
his hijacked plane into the World Trade
Center—arrest and seek to deport him.
Yet behind a wall of secrecy the
public (and Congress) could hardly
know of the INS’s inadequacies, or call
for changes to protect the country. The
INS and its immigration judges are a
part of the Justice Department and
report to Attorney General Ashcroft,
who ordered the secrecy.
From my student days, my passion
for openness and access to governmental
information was shaped by
those words in a 1956 court dissent.
Now, they resonate in the words of
Court of Appeals Judge Keith, “Democracies
die behind closed doors.” ■
Herschel P. Fink, a partner in
Honigman Miller Schwartz and
Cohn LLP, Detroit, Michigan, represented
the Detroit Free Press before
the District Court and U.S. Court of
Appeals for the Sixth Circuit in
Detroit Free Press, Inc. v. John
Ashcroft. The other plaintiffs were
The Detroit News, The Ann Arbor
News, the Metro Times, the American
Civil Liberties Union, and Democratic
Congressman John Conyers, Jr.
of Detroit.
hpf@honigman.com
8 Nieman Reports / Winter 2002