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.
Since 9/11, however, the government has sought broader powers to seal hundreds of cases inside secret categories of its own choosing–a far more sweeping endeavor. In my case, the Third Circuit’s Chief Judge, Edward Becker, ruled that the FBI’s mosaic rationale for doing this was “speculative” and “impossible to weigh objectively.” Nonetheless, he rewrote most of it into his opinion with approval, concluding that given the judiciary’s traditional deference to the security services, “we will not lightly second-guess them.”
But does the mosaic theory work? After Zeidan’s hearing, his lawyer walked out of the courtroom and told me all about it, as he is legally allowed to do. (Zeidan eventually got bail and is awaiting a final disposition.) Oddly, while national security closes the courtrooms it does not extend to the corridor, where anyone can see the detainees pass by. And although the public is barred from the hearings, other detainees–possible terrorists, according to Ashcroft–wait for their hearings and listen to those secret deliberations on the same benches that Judge Garcy banned me from. (Not that they would likely be discussing anything they haven’t already discussed in jail, where they mingle in communal dayrooms.)
I’ve talked to dozens of attorneys representing detainees and a handful of their clients, and all of them say the hearings contain no substantive discussion of national security. Immigration hearings, which last about ten minutes on average, focus almost entirely on whether the immigrant had the right paperwork to be in the country. Further, the government has already named all the people it suspects of actually being terrorists and is trying many of them in open criminal courts. Conversely, if a person is being deported via immigration court he is, by definition, not a terrorist–otherwise the government would not be letting him go.
If the Supreme Court chooses to favor mosaic theory in order to keep the courts closed, it will undo a separate, more developed doctrine enshrined by the Supreme Court in Richmond Newspapers v. Virginia, decided in 1980 by a 7-to-1 vote [see Edward J. Klaris, “Justice Can’t Be Done in Secret,” June 10]. That case gave the public the First Amendment right to witness criminal trials. Richmond case law has since been extended to include civil trials, pretrial hearings and any number of other decision-making bodies. The Associate Justice who dissented in Richmond was William Rehnquist, now the Chief Justice. He believes that if it is wrong to close the courts, it would say so in the Constitution. “[I am] unable to find any such prohibition in the First, Sixth, Ninth, or any other Amendment to the United States Constitution,” and, therefore, the Richmond doctrine is essentially made from whole cloth, Rehnquist wrote in his dissenting opinion. The worry is that after twenty-two years he may at last find a way to reverse Richmond–which means ending the public’s right to watch its government in action–and that Ashcroft is serving up the mosaic theory as the rationale to allow him to do so.