The eleventh floor of the federal building in Newark is not a place anyone visits by choice. The air-conditioning is always either too cold or not cold enough. Even though at this height there would be an impressive view of Manhattan and its bridges, there are few windows. Over the past year this chilly, sunless corridor has often been crowded with men dressed in jailhouse smocks, chained in a line at the ankles, waist and wrists. For many of them, unshaven and stooping to avoid tripping on their shackles, this will be the last they see of America from outside a prison before being placed on a plane, still in chains, and deported to their homes in Africa or Asia. This is New Jersey’s US Immigration Courts and these men are “Special Interest” cases, detained in the mass arrests following September 11, 2001, and now awaiting deportation. Their names, docket numbers, arrest records and hearings are all secret for reasons of national security.
The total number of people detained under the Special Interest label is not known; estimates are generally in the area of 1,200. More than 750 of these men, according to court filings in Washington, turned out not to be terrorists or criminals but immigrants who overstayed their visas. The majority of them had their cases decided at the Newark federal building, the Grand Central of 9/11 detentions.
Back in February, I attempted to watch one of these cases from the public benches of Judge Annie Garcy’s court. As a reporter for the New Jersey Law Journal, I had been contacted by the lawyers for Malek Zeidan, a Syrian ice-cream salesman. Given his country of origin, “he has a very understandable fear of such proceedings,” one of his attorneys said. After Judge Garcy threw me out, the Law Journal sued Attorney General John Ashcroft and the Justice Department for the right to attend the hearings. Three similar suits have been filed in other jurisdictions; all seek media access under the First Amendment to either the detainees’ identities or their hearings. We won our case earlier this year, but the Court of Appeals for the Third Circuit in Philadelphia reversed the ruling on October 8. All three judges on the panel hinted that they believed the US Supreme Court would have the final say, a position bolstered by the fact that a different appeals court in Detroit reached the opposite conclusion–a conflict that only the Supremes can resolve.
Civil liberties concerns regarding courtroom secrecy have been well aired in the debate about the country’s response to terrorism. The government’s defense of that secrecy, however, has not been as thoroughly examined. For instance, it was not immediately apparent what Zeidan’s career in the Paterson, New Jersey, refrigerated-snack business had to do with national security. But that–the Justice Department argues–is exactly the point. Which other Syrian ice-cream salesmen have been arrested? Which remain at large, selling snow cones to an unsuspecting public? This argument, which has formed the centerpiece of Ashcroft’s defense to all four suits, is a little-known legal strategy called “mosaic theory.” In mosaic theory, the government assumes that a terrorist organization might be able to take the little details of such cases and put them together to form a complete mosaic of the government’s investigative process.
Like many things in the Bush Administration, mosaic theory has been resurrected from the years of the cold war. In one such case, Halkin v. Helms, decided in 1978, a group of Vietnam War protesters sued the National Security Agency to find out if their phones had been tapped and whether the information so gained had been given to the CIA and the FBI. The Court of Appeals for the DC Circuit ruled that revealing the information might aid our enemies, and therefore it should remain hidden. In effect, the court enabled the government to spy on antiwar protesters. Until now, mosaic-theory rulings have been restricted largely to people who sought specific information about themselves during the 1960s, ’70s and ’80s.