That secrecy thing, again

May 31, 2002

When, do you suppose, will Attorney General John Ashcroft's Justice Department get the message?

On Wednesday a federal judge in Newark, N.J., ruled that the government could not arbitrarily and categorically close the deportation hearings of Muslim immigrants rounded up after Sept. 11 and keep the proceedings secret.

The Justice Department is now 0 for 3 on that particular issue, having already lost in a federal court in Detroit and a state court in New Jersey. Nonetheless, the department is doggedly appealing.

Last October the department ordered the names and hearing dates of the detainees be kept secret. If somehow word of a hearing leaked, the family, press and public were barred from the proceedings.

However, Judge John Bissell rightly found, as did the two other judges, that this order violated the detainees' rights of due process and the public's right of access to government proceedings. He might have also added it violates fundamental American tenets of fairness and openness.

The government argued that opening the hearings would compromise national security. Bissell quite reasonably said the government could close hearings on an individual basis if it could prove that would be the case -- which the government has not bothered to do so far.

The government seems determined to stall until the point becomes moot. From as many as 1,200 detainees, the number is now down to 104. Even so, the government insistence on arbitrary secrecy is dismayingly Third World.

The same day the government was losing that 9/11-related case, another cropped up that is likely to be with us a lot longer than the immigrants'.

In Norfolk, Va., a federal judge ordered the Justice Department to let an American-born prisoner captured in Afghanistan meet privately with his lawyer, a public defender who has filed suit to force the government to either charge Yesar Hamdi or let him go. The department was appealing a U.S. magistrate's decision to allow Hamdi a lawyer.

The government argues, on largely untested grounds, that since Hamdi was an "illegal combatant" he can be held indefinitely in a military prison without charges and without a lawyer. In a sign of how well the Justice Department has been faring, Judge Robert Doumar said, "That sounds idiotic, doesn't it?"

Having determined that Hamdi was an American citizen -- he was born in Louisiana but left for Saudi Arabia as a child -- the department brought him to the mainland from Guantanamo Bay, but now that he's here the department doesn't want to give him his rights as an American.

Federal Public Defender Frank Dunham, who is giving government service a good name, summed up why this dispute over someone like Hamdi is important: "To me this is scary stuff. This guy is a U.S. citizen and according to the government he can be held for life without ever seeing a judge or a lawyer."

The attitude of the White House and the Justice Department that what they do and how they do it is nobody's business but theirs may be the Bush administration's least attractive aspect.

Copyright 2002, Rocky Mountain News. All Rights Reserved.

-- (pugs@fascist.tyrants), June 01, 2002