AMY GOODMAN: The Supreme Court has handed a victory to the Bush administration yesterday, refusing to hear a challenge to close secret deportation hearings held for hundreds of foreigners detained after the September 11th attacks. Following the attacks, the government ordered all immigration hearings closed if the detainees were deemed so-called special interest cases because of possible links to terrorism. Only the government can decide if a case is a special interest case. The appeal was brought by a group of New Jersey newspapers seeking information about the detainees.

We asked the Justice Department for comment, but the media office declined to join us today. But we are joined by Lee Gelernt, who is the head immigration attorney for the American Civil Liberties Union in New Jersey, lead counsel for the North Jersey Media Group.

Welcome to Democracy Now!

LEE GELERNT: Thank you.

AMY GOODMAN: Explain the court’s decision.

LEE GELERNT: The court decided not to review this case, but it did so in a very specific context. It did so in the context of the government explicitly telling the court that it was currently not conducting any more secret hearings pursuant to this policy and that a revision process was underway and that it was likely to change the policy. I think that context is critical to understand the court’s decision not to review this case. So I think I would dispute somewhat the characterization as a full victory for the Bush administration, because, in effect, the Bush administration ran away from the policy.

We brought two cases: one in Detroit and one in New Jersey. We won one; the government won one. The government lost in the 6th Circuit, in the court of appeals in Cincinnati. It could have gone to the Supreme Court to ask the Supreme Court to review that case, and the Bush administration could have gone to the Supreme Court to defend its policies. It chose not to. In effect, it ran away from its policies, telling the Supreme Court, “Look, we’re likely to change this policy. We’re currently not conducting any more secret hearings.” So I think that context is critical to understand what the court did yesterday.

AMY GOODMAN: Lee Gelernt is head immigration attorney for the American Civil Liberties —

LEE GELERNT: I’m actually a senior staff counsel at the national office of the ACLU.

AMY GOODMAN: We’ll be back in 60 seconds.

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AMY GOODMAN: “Would You Harbor Me,” Sweet Honey in the Rock, and we’ll be bringing you a Sweet Honey in the Rock special on Democracy Now! in the coming days. This is Democracy Now!'s War and Peace Report. I'm Amy Goodman, as we continue our discussion about the ruling yesterday by the U.S. Supreme Court handing the Bush administration a victory when it refused to hear a challenge to close secret deportation hearings held for hundreds of immigrants detained after the September 11th attacks. Our guests, Lee Gelernt, on the line with us, lead counsel for the North Jersey Media Group, and in the studio, we’re joined by Nancy Chang, who’s senior litigation attorney with the Center for Constitutional Rights and author of Silencing Political Dissent.

Nancy Chang, can you continue where Lee Gelernt left off?

NANCY CHANG: I very much agree with Lee that this decision has to be looked at in context, and I don’t view it as a victory for the Bush administration. But I think it’s worth noting that the Supreme Court has a long tradition of avoiding difficult issues of executive power during times of war. This happened during the Civil War, when Lincoln suspended the writ of habeas corpus. It was not until after the war was over that the Supreme Court ruled that unconstitutional. And again, the Korematsu decision was not decided until long after the internment of the Japanese during World War II had ended, and even in that decision, it did not rule the detentions unconstitutional.

And already, the Supreme Court this term has refused to consider two cases challenging anti-terrorism provisions that arose in the wake of September 11th, one involving Guantánamo detainees and one involving the Foreign Intelligence Surveillance Court.

AMY GOODMAN: Those, the FISA courts?

NANCY CHANG: The FISA court.

AMY GOODMAN: And what was that one about?

NANCY CHANG: In November of last year, a court of review for the foreign intelligence system decided that the PATRIOT Act could be broadly construed to allow the loose standards for foreign intelligence surveillance to be applied in cases where a criminal investigation was taking place.

AMY GOODMAN: Lee Gelernt, you represent the North Jersey Media Group. Can you explain further why the media brought this?

LEE GELERNT: Well, I think the media brought it because they want to tell their readers what’s going on. The public has a vital interest in knowing how these deportation proceedings are being conducted. That is true generally with respect to deportation proceedings. It is particularly true in the wake of September 11th, where the government itself has linked the deportation process and the anti-terrorism enforcement. The papers, the Supreme Court said, act as a surrogate for the public. The public itself cannot attend every deportation proceeding or every criminal proceeding or every civil proceeding, but the newspapers can act as their surrogate to be there to inform them of what’s going on.

And it is critical that there be public scrutiny of the process for at least two reasons. One is that it ensures the integrity of the process. It’s particularly important in deportation proceedings, where often a detainee will have no counsel there, will literally be sitting in the courtroom all by themselves, maybe not speak English, have to go through an interpreter, have his very liberty at stake, facing a separation from his family, possibly being removed from the country where he has lived for 10, 20, 30 years, being separated from his wife and children, and he’s fighting for all that, and he’s literally in the courtroom by himself. In addition, very rarely do the federal courts overturn a deportation decision. So the only meaningful institutional check on the deportation process is the public is there to see what’s going on to keep people in line.

The other thing that’s critical is the appearance of justice. And that’s irrespective of how fair the process actually is. What the Supreme Court has repeatedly said is that people can accept what they can see, but they will not accept what they cannot see. Now, the deportation process involves enormous hardships to the immigrant community, but the immigrant community has largely accepted the deportation process. But if they can no longer see what’s going on, if communities, wives, children, husbands are barred from going in the courtroom, and the government simply walks out of the courtroom and announces your husband, your wife is now going to be detained for 12, 15 months, and then deported, and they could not see what was going on, they could not see whether the process is fair, I think the faith the immigrant community has in the deportation process will quickly erode. And I think that’s what’s at stake here.

AMY GOODMAN: Nancy Chang, can you talk about which arm of government this represents and why that is significant?

NANCY CHANG: Well, you raise a very interesting point, Amy. The Creppy directive that’s under challenge in this case is purely a creation of the executive branch. It is not authorized by Congress. It is not part of the USA PATRIOT Act. And some of the most egregious violations of our civil liberties since September 11th have taken place through sheer executive fiat, not with congressional approval. And the immigration system includes not only this directive on closed hearings, but also an attorney general rule that was issued within days of September 11th that extended the time during which the immigrants could be detained without any charge, without any immigration or criminal charge. This is directly contrary to our constitutional norms.

In addition, the Department of Defense has created a construct of enemy combatants and has claimed the right to hold individuals designated as enemy combatants, including U.S. citizens, indefinitely, and basically to lock them away in a dark hole without access to their lawyers or to anyone else who might assist them, with very little in the way of a showing that they are harmful to American interests.

AMY GOODMAN: Just before we wrap up, you’re, Nancy, headed to a rally outside City Hall, following up on our first discussion in Arcata, California, about the USA PATRIOT Act, a resolution that’s been introduced in the New York City Council.

NANCY CHANG: That’s right. It’s a very exciting move. We are trying to restore civil liberties here in New York City. We are going to be joining, hopefully, over 100 municipalities around the country. And if we get New York City to sign on to this, we may have close to 20 million Americans living under jurisdictions where there are resolutions to restore civil liberties.

AMY GOODMAN: Well, I want to thank you both very much for being with us. Nancy Chang is with the Center for Constitutional Rights. CCR represents the North Jersey Media Group, as well. I want to thank Lee Gelernt for being with us, lead counsel for the North Jersey Media Group. The Supreme Court, again, just turned down the — said it would not hear a challenge to the closed, secret deportation hearings held for hundreds of immigrants detained after September 11th.