Justice in Wartime

Open courtrooms are a pillar of justice. But that openness is not always absolute.

Judges themselves sometimes hold private talks with lawyers. The military dispenses justice through courts-martial away from public view. And during war and national emergencies, normal civilian judicial processes sometimes must bend toward a public interest in security while remaining within constitutional bounds.

But just who defines that public interest? Since Sept. 11, the Justice Department has insisted again and again that its ability to catch would-be terrorists demands that some courtroom and law-enforcement procedures – usually accessible to the public – be closed.

It wants to protect the public by preventing terrorists from obtaining information about government surveillance that might aid terrorists' plans. For that reason, the Justice Department has tried to close deportation hearings for immigrants judged to have a terrorist connection.

But a federal appellate panel in Cincinnati recently rejected that argument in a case involving a Muslim cleric who founded a charity that's been charged with channeling money to terrorist groups.

The hearings caught the interest of Michigan newspapers which sued to have them opened. They decried the blanket secrecy thrown around the proceedings. The appellate judges concurred, saying, "Democracies die behind closed doors."

Even in this ruling, however, secrecy was not ruled out. The judges noted the terrorism emergency, and acknowledged there may well be cases where the government can show that sensitive material would emerge and a closed hearing is justified. But a decision to close a hearing should be made before a judge, they said, and not by the Justice Department alone.

This case, or one like it, will likely find its way to the US Supreme Court. And the implications go beyond just providing more open justice for immigrants. Rulings could also break new constitutional ground in making public such civil cases as deportation hearings – and not just criminal cases – public in almost all circumstances.

Regardless of how the high court eventually rules, the country is experiencing an important lesson in balancing openness in its courts against national security needs in times of crisis.

If President Bush believes the US is truly at war – a war on American soil and so far officially undeclared – then the Justice Department in some cases functions essentially as an arm of the military. Then, Americans must ask: Where does crime-fighting stop and war-fighting begin?

While those two fights may need a few different rules, it is judges who must decide on the degree of openness in judicial settings. For now, the courts are still setting down legal precedents on when judicial secrecy is in the public interest.

The Justice Department can do its part by leveling with the American people on why and when it wants to treat warmakers differently from normal lawbreakers.

Then it's up to judges to make the tough call.

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