Security with transparency: judicial review in 'special interest' immigration proceedings.

• Author: Hussain, Rashad

Much of the debate regarding post-September 11 counterterrorism initiatives has centered on the potentially damaging effects of these policies on constitutionally protected rights. Many observers have weighed the balance that the government has struck between national security and civil liberties by determining the extent to which new law enforcement initiatives preserve or encroach upon these rights. (1)

While scholars debate the legality of the government's new tools, it is often more difficult to assess whether such initiatives enhance or undermine security. The war on terrorism relies largely on sensitive intelligence and covert operations, so "victories" often remain undisclosed. Yet such assessments will be crucial in defining the future direction of U.S. policy. If another terrorist attack takes place on American soil, lawmakers will be called upon to determine whether the attack occurred because law enforcement personnel were not given adequate tools to prevent it, or because those tools were used ineffectively. This assessment may determine whether policymakers rush to provide law enforcement with additional powers similar to those they already possess, or instead decide to refocus the nation's overall counterterrorism strategy.

In choosing between these options, it is critical to scrutinize whether limiting the checks on executive branch authority actually translates into enhanced security. This Comment takes one step in this direction by arguing that decreasing transparency through the blanket closure of "special interest" immigration hearings is unnecessary to preserve security and may undermine overall counterterrorism efforts. Part I argues that the closure policy casts an overly broad net by failing to require judicial determinations that individual aliens pose security threats. Part II evaluates an already-existing alternative that avoids this problem: the open hearings of the Alien Terrorist Removal Court (ATRC). Part III proposes a compromise scheme based on the ATRC model that allows closed hearings after case-by-case adjudications of whether particular aliens have terrorist ties. This compromise model provides a viable alternative that allows the government to conceal the identities of truly high-risk detainees while ensuring the valuable safeguard of judicial review. It also reduces the risk that categorical closure may undermine counterterrorism efforts by alienating immigrant communities that can serve as allies in intelligence gathering. Part IV concludes.

I

In immigration cases, the government ordinarily must seek protective orders from immigration judges to seal testimony that may reveal sensitive information. (2) However, ten days after the terrorist attacks of September 11, 2001, at the direction of the Department of Justice, Chief Immigration Judge Michael Creppy issued a directive instructing U.S. immigration judges to close to the press and public all portions of those deportation hearings designated as "special interest" by the Attorney General. (3) The Creppy directive does not list the criteria for determining which hearings are to be closed. Instead, it instructs immigration judges that "[i]f any of these cases are filed in your court, you will be notified by OCIJ [Office of the Chief Immigration Judge] that special procedures are to be implemented" and that "[a] more detailed set of instructions will be forwarded ... to the judge handling the case." (4)

To justify closing these immigration proceedings, Dale Watson, the FBI Assistant Director for Counterterrorism and Counterintelligence, set forth a "mosaic" theory of intelligence. Watson argued that even information that seems innocuous in isolation, such as the names of those detained, might be pieced together by terrorist networks to the detriment of U.S. security interests. (5) Indeed, Watson stated that "the government cannot proceed to close hearings on a case-by-case basis, as the identification of certain cases for closure, and the introduction of evidence to support that closure, could itself expose critical information about which activities and patterns of behavior merit such closure." (6)

But the very nature of the mosaic theory renders it overbroad. As the Sixth Circuit noted,

[T]he Creppy directive does not apply to "a small segment of particularly dangerous" information, but a broad, indiscriminate range of information, including information likely to be entirely innocuous. Similarly, no definable standards used to determine whether a case is of "special interest" have been articulated. Nothing in the Creppy directive counsels that it is limited to "a small segment of particularly dangerous individuals." In fact, the Government so much as...