Witness to Abuse - Human Rights Watch

abuse, international human rights 202 and U.S. constitutional law call for public hearings
when an individual’s freedom is being determined by a court or tribunal. 203 Public
hearings protect the rights of detainees and guard them against abusive or arbitrary
proceedings. They also serve the public’s right to know what its government is up to and
its interest in restraining possible abuses of government or executive power. 204
Yet since September 11, the Justice Department has proceeded against material
witnesses and others caught up in the investigation behind closed courtroom doors. As
Human Rights Watch documented in “Presumption of Guilt,” and the ACLU set forth
in a brief to the Supreme Court, post-September 11, the government arrested more than
one thousand Muslim, Arab, and South Asian non-citizens of “special interest” in secret
and closed the immigration proceedings against them, arguing that national security
202
ICCPR , article 14(1) states:
In the determination of any criminal charge against him, or of his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the public may be
excluded from all or part of a trial for reasons of morals, public order (ordre public) or
national security in a democratic society, or when the interest of the private lives of the
parties so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.
The Human Rights Committee, in its General Comment 13, has noted that the “publicity of hearings is an
important safeguard in the interest of the individual and of society at large.” Apart from exceptional
circumstances, “a hearing must be open to the public in general, including members of the press, and must not,
for instance, be limited only to a particular category of persons. It should be noted that, even in cases in which
the public is excluded from the trial, the judgment must … be made public.” Ibid. The national security exception
to public hearings does not provide states unfettered discretion to close hearings. According to the
Johannesburg Principles on National Security, Freedom of Expression and Access to Information (drafted by
international law and human rights experts in 1995 and endorsed by U.N. special rapporteurs): “A restriction
sought to be justified on the ground of national security is not legitimate unless its genuine purpose and
demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force,
or its capacity to respond to the use or threat of force, whether from an external source, such as a military
threat, or an internal source, such as incitement to violent overthrow of the government.” Principle 2, available
online at: http://www1.umn.edu/humanrts/instree/johannesburg.html, accessed on June 17, 2005.
203
Public hearings and records also enhance public confidence in the proceedings. “The traditional Anglo-
American distrust for secret trials has been variously ascribed to the notorious use of this practice by the
Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse
of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of
despotic groups each of them had become an instrument for the suppression of political and religious heresies
in ruthless disregard of the right of an accused to a fair trial. …The knowledge that every criminal trial is subject
to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial
power.” In re Oliver, 333 U.S. 257, 268-70 (1948) (internal citations omitted).
204
As one court stated in deciding whether to unseal the records of a bail proceeding: “The decision to hold a
person presumed innocent of any crime without bail is one of major importance to the administration of justice
… Openness of the proceedings will help to ensure this important decision is properly reached and enhance
public confidence in the process and result.” Seattle Times Company v. United States District Court for Western
District, 845 F.2d 1513, 1517 (9th Cir. 1988) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508
(1983)).
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