No Closed Hearings, Judge Says

A federal judge in New Jersey ruled Wednesday that the government’s policy of closing deportation hearings for individuals targeted in its massive terrorism probe is unconstitutional.

The ruling by U.S. District Judge John W. Bissell is the second by a federal jurist that sides against the government concerning the thorny issue of closed hearings, but it is more sweeping because of the large number of detainees still held in New Jersey jails.

“This is an enormous decision,” said Lee Gelernt, a senior staff attorney at the Immigrants’ Rights Project of the American Civil Liberties Union.

The roundup of more than 1,200 immigrants and the subsequent secret hearings have been a prominent part of the government’s reaction to the Sept. 11 terrorist attacks on the World Trade Center and the Pentagon. The fate of many of those taken into custody remains unknown.

Under Bissell’s order, the government no longer can close those immigration proceedings based on a Sept. 21 directive issued by chief U.S. Immigration Judge Michael Creppy. If the government wants to close a portion of any such hearing in the future, it may do so only on a case-by-case basis where the government has specified concrete evidence demonstrating a need for closure.

The government is expected to appeal the ruling, although no Justice Department lawyer was immediately available for comment Wednesday.

The government already is appealing a similar ruling made April 3 by a federal judge in Detroit. That case concerned only one detainee, and the government’s effort to get an emergency stay in that case has been rejected by the U.S. 6th Circuit Court of Appeals, which will hear the full case Aug. 6.

Bissell said a preliminary injunction was “an extraordinary remedy,” but he said the plaintiffs--three New Jersey newspapers--had demonstrated a reasonable probability of success in a full trial concerning the issue.

He said the plaintiffs clearly would be irreparably harmed--one of the key standards for obtaining a preliminary injunction--if they could not attend the hearings.

Although there are no precise figures because of government secrecy, there have been reports that the government detained more than 1,200 people in roundups after the terrorist attacks and that 327 of the detainees--the largest concentration anywhere in the country--were held in jails in Hudson and Passaic counties in New Jersey.

Gelernt and other sources said there still are 104 people being held by the government in the post-Sept. 11 probe--the bulk of them in New Jersey.

There Must Be ‘Public Scrutiny of the Process’

Gelernt said hundreds of the detainees have been deported, without ever having a public hearing.

“We are finding out that many of the detainees have waived all their rights, including their rights to further review,” Gelernt said. “Where an individual’s liberty is at stake and they are unrepresented, there has to be public scrutiny of the process to ensure that the government is complying with the Constitution,” said Gelernt, who worked on the case along with the Center for Constitutional Rights and a New Jersey law firm--Gibbons, Del Deo, Dolan, Griffinger & Vecchione.

In the Detroit and New Jersey cases, the government contended that it was entitled to implement new procedures in so-called “special interest” cases lodged after Sept. 11.

Moreover, the government contended that Bissell, who was appointed by President Ronald Reagan, did not have the jurisdiction to consider the case. Bissell rejected that contention, as well as the government’s arguments on the merits of the case.

The judge acknowledged that Congress has the power to determine who may enter and remain in the U.S., but he also stressed that “it is equally established that this power must be administered in a manner that respects procedural safeguards of due process.”

Bissell also acknowledged that the government might have legitimate reasons to close a deportation hearing of a suspect in the wake of the “dastardly” attacks “and the continuing threat of their repetition.” However, the judge said that the blanket policy to close all these hearings, put into effect by Creppy’s Sept. 21 memo, clearly ran afoul of the Constitution.

The judge cited a long line of U.S. Supreme Court decisions that court hearings in the U.S. are presumptively open. He said deportation hearings are no exception. In fact, Bissell noted, that as long ago as 1903, the Supreme Court had ruled that there are due process rights when the government seeks to remove a resident alien.

Government Must Show a Compelling Interest

“Furthermore, since 1964, federal regulations have expressly provided a presumption of openness for deportation proceedings,” Bissell emphasized.

To close such hearings, the government has to show a compelling interest that is narrowly tailored, Bissell wrote.

The government argued that the New Jersey hearings should be closed to avoid setbacks to its terrorism investigation and prevent stigma or harm to detainees.

In support of these claims, the government submitted declarations from James S. Reynolds, chief of the Justice Department’s terrorism and violent crimes section, and Dale Watson, the FBI’s executive assistant director for counter-terrorism and counterintelligence.

Bissell said the affidavits describe possible adverse consequences of open hearings, including the possibility of deterring detainees from cooperating in the event of their release; revelations that might indicate to terrorists “the direction and progress of [government] investigations; facilitating others in creating false or misleading evidence; and revealing “sensitive investigatory information.”

But Bissell said that “the problem with the Creppy directive [is that] there is nothing in it to prevent disclosure of this very information” by the detainee or that individual’s lawyer.

Additionally, he said that information might come out during an appeal.

Moreover, he said that, to the extent that the Creppy directive is supposed to help prevent detainees from being stigmatized, “its mandates sweep too broadly because it does not permit the individual to elect such protective treatment.”

Finally, Bissell said it was clearly in “the public interest” to enjoin government action that violates the Constitution.