The issue at the heart of the case was a policy set out in a September 21, 2001 Memorandum from Chief Immigration Judge Michael Creppy. The Memorandum instructed immigration judges to bar access by the public, the press, and family members to immigration courtrooms in cases of “special interest” to the Attorney General. The majority of individuals subject to this policy were not accused of any criminal activity or involvement with terrorism. Most of the cases involved ordinary civil immigration violations such as expired visas.

“The Supreme Court’s function as a check on executive power is vital to the protection of constitutional liberties,” said Rebecca Thornton, a staff attorney with the Lawyers Committee for Human Rights. “There has been very little oversight of the Administration’s actions since 9/11. The Supreme Court’s allowing the blanket policy of secret deportations to stand is a blow to our system of checks and balances. At a minimum, the executive branch’s concerns about national security could have been safeguarded by allowing immigration judges to decide on a case-by-case basis whether particular hearings needed to be closed.”

When the deportation policy was originally challenged in federal court by media and other groups, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati said that “democracies die behind closed doors,” and held that the blanket policy was unconstitutional. In a separate case challenging the same policy, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled 2-1 in favor of the government. The majority upheld the secret hearings policy because it found no constitutional right of access by the press to deportation hearings, especially in cases that implicate national security, as the government has alleged all so-called “special interest” cases do. These rulings created a conflict between the Third and Sixth Circuits; the ACLU filed a petition seeking the Supreme Court’s review of the case.

The media groups challenged the policy claiming a First Amendment right to attend the hearings. But the policy also raises concerns about the due process rights of immigrants. Pursuant to the policy, “special interest” cases were removed from the docket, a public schedule of cases, denying lawyers access to information about a client's case. In these complex proceedings, where frequently an individual’s liberty is at stake, access to a lawyer is essential.