By ERIC FREEDMAN
Capital News Service
LANSING — “Democracies die behind closed doorsÉ. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution.”
Damon Keith, a federal appeals judge from Detroit, wrote those words in August when the 6th Circuit U.S. Court of Appeals struck down the broad closure of immigration hearings in the purported name of the war on terrorism.
The court said such across-the-board closure of “special interest” cases is unconstitutional. Deportation hearings have traditionally been public, it said, and the First Amendment gives the press and public a right to attend.
On one level, the case involves Rabih Haddad of Ann Arbor, a native of Lebanon and co-founder of an Islamic charity the government claims is linked to terrorism. Haddad overstayed his U.S. visa, and the government wants to use secret hearings to justify his deportation.
However, the core of that case is far deeper than the fate of one man. In the court decision, Keith acknowledged that the political branches of government — the White House and Congress — have nearly total authority to control our national borders.
But he continued, “The only safeguard on this extraordinary power is the public, deputizing the press as the guardians of their liberty.” To me, that is the core of the case.
For journalists, covering any war entails risks, whether on the battlefront or at home.
On a broader scale, journalists are engaged in a war, too, a war that began long before Sept. 11, 2001, but which has escalated since then.
It’s a war on behalf of the public against government secrecy. It’s a war against public officials who quarantine the public’s right to know what their own government is doing and the public’s right to ensure that their government operates fairly and properly.
Lack of access to information cripples the ability to print or broadcast information. If journalists can’t gather news, how can they report it?
In September, the nonprofit Reporters Committee for Freedom of the Press issued a report called “Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know.”
The study quantified the risks to a free press in various categories of newsgathering.
The most serious threat — “severe” — applies to covering the war, access to terrorism and immigration proceedings, and freedom of information. It covers such situations as tight press access to war zones, the right to see court documents and access to unclassified documents and Web sites formerly available to the public.
The group wasn’t crying wolf, as an Oct. 8 decision by the 3d Circuit Court of Appeals in Philadelphia shows. That court’s decision directly conflicts with Judge Keith’s conclusion about the unconstitutionality of blanket closure of deportation hearings.
Instead of siding with the press, the public and the First Amendment, that court said, “We are keenly aware of the dangers presented by deference to the executive branch when constitutional liberties are at stake, especially in times of national crisis. On balance, however, we are unable to conclude that openness plays a positive role in special-interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension.”
In the Reporter’s Committee report, the second-highest level of risk — “high” — relates to military tribunals proposed for some Taliban and Al-Qaida suspects.
The third-highest level of risk — “elevated” — affects newsgathering in two ways. One is journalists’ legal shield against forced disclosure of confidential sources and unpublished information. The other is increased secretiveness of state governments that have rolled back access to public records and public information.
Finally, the Reporters Committee found a “guarded” risk to a free press concerning domestic coverage of the news and the USA PATRIOT Act.
For example, it cited government efforts to dissuade the media from broadcasting or printing statements from Osama bin Laden. And it said the PATRIOT Act creates concerns about “how or when the FBI’s expanded wiretapping powers” and other surveillance-related authority “will affect journalists.”
This is an exciting time for journalism in America because there is no shortage of news and because there’s a deep public appetite for that news.
It’s also a troubling time for journalism when our own government practices wide-scale pre-censorship and where it preaches democracy to the world but acts afraid of democracy at home.
I’m with Judge Keith.
As he put it, “A true democracy is one that operates on faith — faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusionsÉ. Open proceedings with a vigorous and scrutinizing press serve to ensure the durability of our democracy.”
Eric Freedmanis a visiting assistant professor of journalism at Michigan State University and a Pulitzer Prize-winning former Detroit News reporter.
© 2002, Capital News Service, Michigan State University School of Journalism
By ERIC FREEDMAN