A Second Federal Court Rejects Government Secrecy, Orders Open Immigration Hearings in Post-Sept. 11 Challenge

May 29, 2002 12:00 am

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NEWARK, NJ–A federal judge today rejected the government’s blanket policy on secret deportation hearings for immigrants detained after September 11, joining a federal court in Michigan in rejecting the claim that public access would compromise its terrorism investigations.

The American Civil Liberties Union, which brought both cases on behalf of news organizations and members of the public who sought access to the hearings, praised the New Jersey decision and called on Attorney General Ashcroft to revoke the policy in light of the federal court rulings.

“”With this decision, the government still has the power to close hearings when it believes there is sensitive information,”” said Lee Gelernt, a senior staff attorney with the ACLU’s Immigrants’ Rights Project. “”But the decision bars the government from categorically closing down every immigration hearing from beginning to end, without specific evidence in an individual case of why it must be secret.””

At issue was a policy set forth in a September 21, 2001, memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department.

In rejecting the policy, Chief U.S. District Judge John W. Bissell today wrote that without the ban, “”the government could continue to bar the public and press from deportation proceedings without any particularized showing of justification. This presents a clear case of irreparable harm to a right protected by the First Amendment.””

Significantly, Judge Bissell noted that the government’s policy did not serve to protect secrets of the investigation because it did not prohibit detainees or their attorneys from speaking publicly themselves.

The national ACLU and its New Jersey affiliate filed the case on March 6 on behalf of the North Jersey Media Group, which owns the Bergen Record and the Herald News, and the New Jersey Law Journal, a weekly legal paper. In its lawsuit, the ACLU said that the policy violates the detainees’ First Amendment rights, as well as the Immigration and Naturalization Service’s long-standing policy of open hearings.

“”Once again, the courts have recognized that blanket secrecy is unconstitutional and incompatible with the values of a free society,” said Deborah Jacobs, Executive Director of the ACLU of New Jersey. “If hearings of this nature are being conducted in secret, how can we be sure that our justice system is really working and that detainees are being treated fairly?”

The government is expected to seek a review of today’s decision with the Third Circuit Court of Appeals; it has already appealed the Michigan decision to the Sixth Circuit, which last month denied the government a stay pending the outcome of the appeal. A hearing in that case is scheduled for August 6.

In two separate state and federal cases also related to the government’s post-Sept. 11 policies, the ACLU is seeking basic information about the hundreds of people who have been arrested and detained since Sept. 11.

In the state case, a New Jersey judge ruled on March 27 that under state law, the government must release the names of hundreds of detainees in New Jersey jails. The federal government, which intervened in the case, has also appealed that decision.

In the federal case, which was argued in Washington today, the ACLU and a coalition of privacy and public access groups told U.S. District Court Judge Gladys Kessler that the Justice Department is ignoring fundamental freedom of information laws by keeping secret the names of those detained as part of the Sept. 11 investigation. Judge Kessler did not say when she would rule on the complaint.

For more information on the ACLU’s challenges to government secrecy, go to http://archive.aclu.org/features/f012302a.html.

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