High court to review immigrants' rights in jail

WASHINGTON -- The Supreme Court said Friday it will decide whether immigrant criminals can be kept jailed without bail to make sure they don't flee before deportation, a case with added resonance since the detentions of foreigners in terrorism investigations.

The court, in a final day of business before breaking for the summer, jumped into the debate over the rights and treatment of immigrants who break the law. Prosecutors have lost several constitutional challenges to such detentions in federal court.

The issue predates Sept. 11 and the subsequent roundup and detention of possible terrorism suspects, but raises some of the same civil liberties questions posed on behalf of immigrants recently held on secret charges.

Separately Friday, the court temporarily blocked a judge from opening secret detention or deportation hearings for those picked up since Sept. 11. The court acted at the request of the Bush administration, which argued that national security would be damaged by allowing reporters or others to attend.

Civil rights and media organizations are seeking names and other information on an unknown number of foreign nationals held by the Immigration and Naturalization Service since Sept. 11.

"If these proceedings are opened to the public during the critical phase of the urgent threat to national security, terrorist organizations will have direct access to information about the government's ongoing investigation," Bush's top Supreme Court lawyer, Theodore Olson, wrote in a court filing.

In that case and in the appeal the high court accepted Friday, the Bush administration seeks an across-the-board policy that would allow at least temporary detention of foreign nationals without an assessment of whether each person being held is dangerous or likely to flee.

"Courts have not looked well on those kind of blanket assertions of power, except when an extraordinary need is shown," said Elliot Mincberg of the liberal lobbying group People for the American Way. "We are hopeful the courts will have learned from experience about the danger of acceding to blanket requests from the government for broad power without a more individual showing of need."

Dan Stein, of the Federation for American Immigration Reform that supporters stricter immigration laws, said government has extensive power in immigration cases and should be able to exercise it.

"Both these cases are an attack on the bedrock constitutional principle that the Congress and, where delegated, the executive (branch) have very broad authority in detaining aliens whose status here is in question," Stein said.

The secret hearings issue apparently marks the Supreme Court's first intervention in a case directly related to the Sept. 11 terror attacks. Friday's action was not a ruling, but may indicate the court expects to confront the same case again when lower court appeals are over.

In the meantime, the court will hear the case of a Korean-born Californian who served a three-year sentence for burglary and petty theft. One day after release from state prison in 1999, Hyung Joon Kim was jailed by the INS pending a hearing at which the government would try to deport him as a felon unworthy of U.S. residency.

The INS acted under a 1996 federal law requiring the government to hold foreigners convicted of a range of felonies. The law does not allow for a bond hearing, at which the immigrant could try to win release pending a deportation hearing.

The Bush administration defended the law, passed by Congress as part of a wider overhaul of immigration rules, as necessary to keep deportable criminals from fleeing underground rather than show up for hearings they are almost sure to lose.

"As the data compiled by Congress show, thousands and thousands of aliens previously failed to appear for their removal proceedings," Olson wrote for the administration.

Kim challenged the detention as a violation of his Fifth Amendment right not to be "deprived of life, liberty or property without due process of law."

Kim is a legal resident of the United States, although not a citizen. A federal court ruled the detention portion of the 1996 law unconstitutional when applied to legal immigrants, and ordered a bond hearing to determine if Kim was a flight risk.

A federal appeals court substantially upheld that ruling earlier this year, and the Bush administration appealed to the Supreme Court.

The case is similar to two in which the court struck down other aspects of the 1996 law.

Justices ruled that legal aliens convicted of certain crimes are entitled to a hearing before they can be ordered out of the country, and that the government cannot indefinitely detain immigrant criminals if their home countries will not accept them.

Friday's case is Demore v. Kim, 01-1491.