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INS Coverage mined that six times as many people who are represented win asylum as those who are not. • Because the system is heavily decentralized, the treatment of asylum seekers varied greatly based on where they entered the country— and which INS district was responsible for their custody. The result was a system with recurring tragic stories, such as that of Kailasapillai. But the situation was far from black and white: Government officials were not out to dismantle the Statue of Liberty. At issue was how the Justice Department was expected to fulfill the dual role of protecting refugees needing liberty and safety and protecting U.S. citizens from people illegally entering the country by falsely claiming asylum. International refugee law, embraced by the United States as law, recognizes that victims of persecution often have no way to obtain valid passports or visas from governments that are persecuting them. But by the mid-1990’s, there was growing fear that the system had gone too far in protecting refugees. There was economic fear, that illegal immigrants were taking jobs. And there was fear of terrorism, as people who had entered the country seeking asylum were linked to the 1993 bombing of the World Trade Center and to the shooting of CIA employees outside the agency’s Virginia headquarters. INS officials adopted regulations to tighten the process; but Congress, spurred in part by a “60 Minutes” segment highlighting the potential for abuse, ignored agency opposition and went further. The issue was clear: When thousands of people with nothing beyond the shirts on their backs and a tale of horror show up at the borders each year, how should the country respond to protect its borders without causing further harm to victims of persecution and torture? It is a question without easy answers, and the answer became only more difficult for refugees after the terrorist attacks of September 11, 2001. That should provide obvious fodder for journalistic investigation: questions about government policies and how those policies are carried out, with the likelihood that the most vulnerable of people are being hurt by them. INS Stories: Tough Sell in Many Newsrooms Those stories were widespread even before the terrorist attacks of September 11, attacks which triggered only tighter controls that furthered the likelihood that some persecution victims would suffer more harm as they sought the safety and protection of the United States. And yet, journalistic interest in pursuing such stories seems surprisingly tepid. “This is the time we most need the press to investigate and ask proactive questions about whether the policies of this administration are just,” said Elisa Massimino, Washington director of the Lawyers Committee for Human Rights. “We’re seeing exactly the opposite, at a time when the rights of those most vulnerable are being put at further risk.” There are a number of reasons that such stories are not more sought after—reasons that involve problems specific to the issue and reasons that involve problems more industry-wide. • There is, of course, the skepticism with which the issue is greeted by many editors and reporters who know how readily people would fabricate stories if it would help them find better lives in America. An awful lot of friends and colleagues expressed concern at the time and effort I was spending to document the stories of people who they presumed—wrongly, in many cases— were untrustworthy; that suspicion certainly has only grown since the threat of terror became more real. • There is the problem any systemic project faces in an era of tight budgets and pressure for more productivity. Taking on the systemic abuses of asylum seekers takes time and money, two commodities in shorter supply these days; the amount of effort is accentuated by the secrecy that surrounds the system and the time it takes to pry information loose. • And there are the worries that pervade editors’ offices these days, about whether the hardships facing anonymous foreigners without proper papers are an issue that any reader cares about. Refugees are not likely to find favor in focus group discussions about what readers want from their morning paper. Massimino adds one more reason: “The government assault on noncitizens has become more nuanced and reporters have to work harder. I’ve had a number of disappointing conversations with reporters who lose interest as soon as they realize what they have to do to really explore the issue.” I was lucky. Having undertaken the project through a fellowship, I was left to argue with only myself about time and money. In the end, the San Jose Mercury News embraced the articles and gave them a good home. But pursuing stories of the systemic failures of the immigration system remains no easy sell. It requires risktaking by news organizations that understand the topic might be expensive to pursue and will generate a significant amount of distressing e-mail from readers who are angered and frightened by the world. But it is, in the end, what many of us entered journalism to do: to serve as a voice for Ponnampalam Kailasapillai and others like him, the persecution victims who have no other voice as they suffer at the hands of an arbitrary system. Seen in those terms, the decision doesn’t seem so difficult after all. ■ Rick Tulsky, a 1989 Nieman Fellow, is projects reporter at the San Jose Mercury News. Tulsky’s project on refugees and the INS won a Robert F. Kennedy Journalism Award in 2001. This year Hofstra University gave him its Francis Frost Wood Courage in Journalism Award for undertaking and completing the project despite many obstacles. ricktulsky@aol.com 6 Nieman Reports / Winter 2002
INS Coverage ‘Freedom of the Press Becomes a River Without Water’ An attorney describes the fight for access to news in a post-September 11 world. By Herschel P. Fink Isuspect I am among the few who can look back over a lengthy professional career and point unhesitatingly to one specific, defining event that sparked a passion and sent them down a lifelong career path. In my case, it has been a twin career of journalist for almost a decade followed by news media lawyer for decades more. Now, as an attorney representing the Detroit Free Press, I am in the midst of an access case for journalists that many predict will be the next major Supreme Court press decision and the first to challenge the U.S. Justice Department’s inconsistent post-September 11 handling of terror-linked cases. This defining event occurred for me in an unlikely place when I was a student journalist and read a snippet of pure poetry in a 1956 dissenting Pennsylvania Supreme Court opinion contained in my press law textbook. The dissent took issue with the majority opinion, which affirmed the criminal contempt convictions of seven journalists who photographed the defendant in a murder trial outside a courtroom in violation of a local court rule. The majority rejected the defense that there existed a First Amendment right to gather news. Justice Musmanno, however, wrote this ringing affirmation of his belief in the right of a free press to gather and print the news: Freedom of the press is not restricted to the operation of linotype machines and printing presses. A rotary press needs raw material like a flour mill needs wheat. A print shop without material to print would be as meaningless as a vineyard without grapes, an orchard without trees, or a lawn without verdure. Freedom of the press means freedom to gather news, write it, publish it, and circulate it. When any one of these integral operations is interdicted, freedom of the press becomes a river without water. I’ve never forgotten that “river without water” quote and have used it countless times when I’ve taught student journalists press law for a decade at a state university in Detroit. It also inspired and guided me to uncover and report news as a reporter and still drives me in the courtroom to win access for clients, including the Detroit Free Press, which has never in the almost 20 years that I have been privileged to represent it been reluctant to battle for access to information that the government wants to keep secret. The Challenge of ‘Special Interest’ Rules The quote received new meaning from a unanimous decision of the U.S. Court of Appeals for the Sixth Circuit on August 26, 2002 in a case in which the Free Press, three other Michigan newspapers, the ACLU, and Representative John Conyers, Jr. challenged the U. S. Attorney General on his policy of holding secret deportation trials of aliens. Estimates tell us that about 400 detainees bear this “special interest” designation, which the Attorney General gives without public explanation in cases in which the person is suspected of being linked to terrorism. Such individuals are held incommunicado. The government will not publicly acknowledge their arrests, and their trials are held in secret, away from public and press view, inaccessible even to their own families. The plaintiffs challenged that arbitrary blanket policy in a lawsuit filed in March 2002, in federal court in Detroit. The lawsuit, Detroit Free Press, Inc. v. John Ashcroft, arose specifically from the case of an Ann Arbor, Michigan man, a Muslim and native of Lebanon, who remained in the United States illegally for three years after his student visa expired. His case was brought to the attention of the Free Press when friends and family of the man, Rabih Haddad, complained about his detention and secret trial to the newspaper. The plaintiffs won a strong ruling from U.S. District Judge Nancy Edmunds in April 2002, holding that deportation trials must be conducted in public and that specific portions could be closed only on particularized findings to accommodate overriding national security concerns, consistent with U.S. Supreme Court rulings that require open criminal trials. The government appealed Judge Edmunds’ ruling, and in its opinion affirming her decision, the U.S. Court of Appeals for the Sixth Circuit broke new and important First Amendment ground. The August 26 opinion by Court of Appeals Judge Damon Keith itself contained language that should inspire the next generation of journalists and press lawyers. Judge Keith sharply chastised the government and warned that “democracies die behind closed doors,” and held that the press is the deputized guardian of the public’s liberties. While the Sixth Circuit’s ruling was limited to secret deportation trials, quasi-judicial administrative proceedings, the opinion broadly suggested that access to other categories of administrative proceedings, including executive and legislative, were within the ambit of the First Amendment, echoing that 1956 dissent by Justice Musmanno that long ago inspired me. The case is the first appellate decision questioning the Bush administration’s secrecy tactics. A parallel case in the Third Circuit, however, came to the opposite conclusion on October 8, 2002. [See story by Hilary Nieman Reports / Winter 2002 7
Page 1 and 2: NIEMAN REPORTS THE NIEMAN FOUNDATIO
Page 3 and 4: Vol. 56 No. 4 Winter 2002 NIEMAN RE
Page 5 and 6: Creating a New Web of Connections T
Page 7: Investigating What Happens to Refug
Page 11 and 12: The People’s Right to Know vs. Go
Page 13 and 14: INS Coverage An immigration attorne
Page 15 and 16: Why Reporters Should Want to Cover
Page 17 and 18: INS Coverage tion that lit up the p
Page 19 and 20: INS Coverage foreign-born populatio
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Page 23 and 24: INS Coverage Phoutone Chanthabouala
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