September 11, 2001 will forever remain as a defining day in our Nation's history. On the morning of that day, a relatively small group of terrorists was able to exploit our Nation's vulnerabilities and freedoms to inflict horrific death and devastation. The fact that the September 11th terrorists were not citizens of the United States, and that so many of them were in the country illegally, resulted in a well-deserved reexamination of our Nation's immigration bureaucracy.

On September 21, 2001, the Nation's Chief Immigration Judge issued a directive to all Immigration Judges requiring that all proceedings in so-called "special interest cases" be closed to the press, public, and family members and friends of the alien whose right to remain in this country was at issue. The directive envisions a complete information blackout in such cases.

Special interest cases are defined as cases in which an alien might have connection with, or have information pertaining to, terrorist activities against the United States. The decision whether any given alien's proceeding qualifies as a special interest case is made by the U.S. Department of Justice.

Within the past three months, two federal appellate courts have addressed the constitutionality of the INS's blanket closure of proceedings in special interest cases, and those appellate courts reached diametrically opposite conclusions.

On August 26, 2002, the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit ruled that the government's blanket closure of removal proceedings in special interest cases violated the First Amendment rights of the public and the press. Senior Circuit Judge Damon J. Keith wrote the Sixth Circuit's opinion on behalf of a unanimous three-judge panel, and the ruling, not surprisingly, was very warmly received by the news media. Indeed, a The New York Times columnist wrote a piece nominating Judge Keith for the status of true American hero.

Judge Keith's opinion was noteworthy for the stirring language that it employed. He wrote:

"The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation."

The Sixth Circuit's holding was not that the INS could never conduct closed-door hearings in terror-related removal cases. Rather, the Sixth Circuit held that the federal government had the burden of establishing to the satisfaction of the presiding Immigration Judge, on a case-by-case and even hearing-by-hearing basis, that the hearing or case should be closed to the press and public due to the sensitive nature of the information to be revealed.

The Sixth Circuit's case involved INS proceedings against a lone individual who had been residing in Michigan. The plaintiffs that challenged the INS's closure directive in Michigan included The Detroit Free Press and several other media outlets located in that region.

The appeal that the Third Circuit decided last month presented essentially the same issue that the Sixth Circuit resolved, but the case that reached the Third Circuit had a very different factual and procedural history. In early March 2002, two New Jersey-based newspapers (one of which was The New Jersey Law Journal, an affiliate of The Legal Intelligencer) filed suit in a New Jersey federal court to challenge the blanket closure of deportation proceedings in Newark, New Jersey's Immigration Court.

Chief Judge John W. Bissell of the U.S. District Court for the District of New Jersey promptly considered the newspapers' request and issued a nationwide preliminary injunction in late May 2002 that prohibited the INS from enforcing its blanket closure order. Rather, the INS had to convince Immigration Judges that closure was necessary on either an individual case or individual hearing basis.

After Chief Judge Bissell denied the federal government's request for a stay pending appeal, the federal government sought a stay from the Third Circuit, which also was denied. The federal government then took its request for an emergency stay to the U.S. Supreme Court, which on June 28, 2002 granted a stay of the preliminary injunction pending the Third Circuit's ruling.

The Supreme Court's grant of a stay dealt a serious blow to the chances that the Third Circuit might affirm the New Jersey district court's preliminary injunction. The Supreme Court would not have stayed the trial court's preliminary injunction unless the Justices believed that the federal government had a substantial likelihood of prevailing on the merits in the Third Circuit.

On September 17, 2002, the Third Circuit heard oral argument in the appeal. Based on the questions that the attorneys received from the Third Circuit judges assigned to decide the appeal, it seemed clear that these judges were not likely to reach the same result as the Sixth Circuit had announced less than a month earlier.

On October 8, 2002, the Third Circuit issued its ruling. By a vote of 2-1, the Third Circuit ruled that the newspapers did not have a First Amendment right to attend deportation hearings that the Attorney General of the United States determined to present serious national security concerns. Thus, the Third Circuit's ruling not only reversed the New Jersey district court's nationwide injunction, but it also left no possibility that the newspaper plaintiffs could prevail in further proceedings before the trial court.

Chief Judge Edward R. Becker wrote the Third Circuit's majority opinion, in which Senior Circuit Judge Morton I. Greenberg joined. Circuit Judge Anthony J. Scirica, who is scheduled to become the Third Circuit's Chief Judge in May 2003, dissented.

In his dissent, Judge Scirica wrote that while he would have invalidated the nationwide scope of the trial court's preliminary injunction, he nevertheless would have affirmed the trial court's conclusions that a case-by-case or hearing-by-hearing inquiry into national security concerns was sufficient, and that a blanket closure of all special interest proceedings violated the First Amendment rights of the press and the public.

Which court, the Third or the Sixth Circuit, reached the right result? If you define "right result" to mean the result that the U.S. Supreme Court is most likely to agree with, my prediction is that the Third Circuit reached the right result.

The U.S. Supreme Court case law that determines whether the press and public have a First Amendment right of access to a particular category of governmental proceedings asks two relatively simple questions. First, is there a historical right of public and press access to the proceedings in question? If the proceedings have been open to the public since the time of the Norman Conquest, this "experience" prong of the two-part test is likely to be resolved in favor of allowing the public and the press to attend. If there is no substantial history of openness, then the experience prong will not be satisfied, and a court can hold that no First Amendment right of access exists.

The other half of the inquiry, often referred to as the "logic" prong, asks whether public access plays a significant positive role in the functioning of the particular government process in question. Under this second part of the test, the Third Circuit ruled that the court should focus not only on the benefits of openness, but also on its possible harmful effects.

The Third Circuit majority concluded that immigration hearings lack a sufficiently long history of openness to satisfy the experience prong. Judge Scirica, in dissent, and the three-judge Sixth Circuit panel disagreed, concluding instead that the history of openness that exists, even if it dates back fewer than 100 years, was sufficient to satisfy the experience prong.

Under the logic prong, the Third Circuit's majority was willing to afford much more deference to the Executive Branch's contention that even seemingly innocuous information in "special interest" cases could be used by terrorists and their sponsors to harm the United States further. While both the Sixth Circuit panel and Judge Scirica in dissent believed that a case-by-case review of confidential material would suffice to prevent the release of information potentially harmful to the United States' interests, such a view ran directly contrary the U.S. Department of Justice's argument that individual Immigration Judges lack the overall perspective necessary to determine when closure is necessary for national security reasons.

Given the continued national climate in which another staggering terrorist attack remains an all too real possibility, given the U.S. Supreme Court's interim stay of the New Jersey district court's preliminary injunction, and given the fact that the Supreme Court's precedent comfortably supports the Third Circuit's ruling, I anticipate that the Supreme Court will side with the Third Circuit's resolution of the issue and hold that the public and press have no First Amendment right to attend removal hearings in special interest cases.

This article is reprinted with permission from the November 11, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.