Last week I strongly criticized the Justice Department's decision to change its long standing practice of holding public immigration hearings behind closed doors. I became concerned after being denied admission to a bond hearing in Detroit involving Rabih Haddad, a well-respected member of Michigan's Muslim community who was being detained for an immigration violation. In this time of heated passions and rhetoric, we must make the critical distinction between our Government's detention of suspected terrorists based on specific evidence of illegal behavior and the Government's disregard for the Constitutional rights of persons in the United States to have a fair and public hearing. To be clear, I have firmly supported the need to bring terrorists to justice, while consistently protesting against Government abuses of our Constitution.
Over three weeks ago, Pastor
Haddad was taken into custody for an immigration violation. The INS
has not charged him with any crimes or alleged that he has anything at
all to do with terrorism. Persons charged with immigration violations
typically are released pending a hearing and these hearings before an immigration
judge are open to the public. What I find objectionable is the fact that
Pastor Haddad continues to be detained without credible evidence being
offered regarding the need for his detention and without the benefit of
The U.S. Supreme Court established in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982), that people have a First Amendment right to an open and public hearing if such hearings have traditionally been open to the public and if a public hearing plays a significant role in the judicial process. For over thirty years, immigration deportation hearings of the kind Pastor Haddad is undergoing have been open to the public. In fact, the applicable Federal regulations dictate that deportation proceedings are presumptively open to the public. 8 C.F.R. 3.25 (1989). Similarly, public immigration hearings play a critical role in providing a check on the judicial process by informing the public of alleged offenses and by making incriminating evidence available for cross-examination. Unfortunately, our own Justice Department has decided not to follow the Supreme Court's road map for providing First Amendment protections.
In the case of Pastor Haddad, and uncounted other cases around the country, Immigration Courts are holding secret deportation hearings away from the critical eye of the public, the media and family members. The secret hearings are pursuant to an internal Immigration Court memo based on undisclosed Justice Department procedures. No standards have been issued for closing a hearing and there is no procedure for the review and reporting of decisions made in closed hearings. The process for closing hearings was invoked unilaterally by the Justice Department without any public notice or an opportunity for comment, as required by law.
I personally was refused admission to Pastor Haddad's detention hearing. When the Ranking Member of the House Judiciary Committee - the committee having oversight responsibility for our immigration laws and our courts -- is not permitted to attend such a hearing in our court system, something very wrong has happened to the system of justice in America.
Some argue that foreign nationals somehow should be treated differently as lesser individuals. While non-citizens may be entitled to fewer Constitutional protections if they are outside the United States, the Supreme Court has correctly held that even in cases involving national security, "aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassing due process of law." Shaughnessy v. Mezei, 345 U.S. 206, 211 (1953).
I fear the Justice Department, in its zealousness to protect our freedoms by detaining Middle Easterners without disclosing evidence and by holding secret hearings, is quickly whittling away the Constitutional foundation that has made freedom a beacon for the world.