Secrecy Is Our Enemy

2 September 2002

You want an American hero? A real hero?

I nominate Judge Damon J. Keith of the United States Court of Appeals for the Sixth Circuit.

Judge Keith wrote an opinion, handed down last Monday by a three-judge panel in Cincinnati, that clarified and reaffirmed some crucially important democratic principles that have been in danger of being discarded since the terrorist attacks last Sept. 11.

The opinion was a reflection of true patriotism, a 21st-century echo of a pair of comments made by John Adams nearly two centuries ago. "Liberty," said Adams, "cannot be preserved without a general knowledge among the people."

And in a letter to Thomas Jefferson in 1816, Adams said, "Power must never be trusted without a check."

Last Monday's opinion declared that it was unlawful for the Bush administration to conduct deportation hearings in secret whenever the government asserted that the people involved might be linked to terrorism.

The Justice Department has conducted hundreds of such hearings, out of sight of the press and the public. In some instances the fact that the hearings were being held was kept secret.

The administration argued that opening up the hearings would compromise its fight against terrorism. Judge Keith, and the two concurring judges in the unanimous ruling, took the position that excessive secrecy compromised the very principles of free and open government that the fight against terror is meant to protect.

The opinion was forceful and frequently eloquent.

"Democracies die behind closed doors," wrote Judge Keith.

He said the First Amendment and a free press protect the "people's right to know" that their government is acting fairly and lawfully. "When government begins closing doors," he said, "it selectively controls information rightfully belonging to the people. Selective information is misinformation."

He said, "A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution."

The concurring judges were Martha Craig Daughtrey and James G. Carr. The panel acknowledged and said it even shared "the government's fear that dangerous information might be disclosed in some of these hearings." But the judges said when that possibility arises, the proper procedure for the government would be to explain "on a case-by-case basis" why the hearing should be closed.

"Using this stricter standard," wrote Judge Keith, "does not mean that information helpful to terrorists will be disclosed, only that the government must be more targeted and precise in its approach."

A blanket policy of secrecy, the court said, is unconstitutional.

The case that led to the panel's ruling involved a Muslim clergyman in Ann Arbor, Mich., Rabih Haddad, who overstayed his tourist visa. The ruling is binding on courts in Kentucky, Michigan, Ohio and Tennessee and may serve as a precedent in other jurisdictions.

The attorneys who argued the case against the government represented four Michigan newspapers and Representative John Conyers Jr., a Michigan Democrat. They took no position on whether Mr. Haddad should be deported.

"Secrecy is the evil here," said Herschel P. Fink, a lawyer who represented The Detroit Free Press. He said the government "absolutely" had an obligation to "vigorously" fight terrorism. But excessive secrecy, he said, was intolerable.

"We just want to watch," said Mr. Fink.

Judge Keith specifically addressed that issue. The people, he said, had deputized the press "as the guardians of their liberty."

The essence of the ruling was the reaffirmation of the importance of our nation's system of checks and balances. While the executive branch has tremendous power and authority with regard to immigration issues and the national defense, it does not have carte blanche.

Lee Gelernt, a lawyer with the American Civil Liberties Union who represented some of the plaintiffs in the case, noted that the administration has been arguing since Sept. 11 that it needs much more authority to act unilaterally and without scrutiny by the public and the courts.

He said last week's ruling was the most recent and, thus far, the most important to assert, "That's not the way it's done in our system."

Bob Herbert
Published in the New York Times © 2002 The New York Times Company

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