The Yale Law Journal

April 2004

Security with Transparency: Judicial Review in "Special Interest" Immigration Proceedings

Rashad Hussain
113 Yale L.J. 1333 (2004)

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.

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.