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Judge Rejects Closure of Terrorism Hearings

Courts: The challenge on deportation proceedings could have a broad influence, an expert says.


A federal judge in Detroit ruled Wednesday that a government policy to close deportation hearings of individuals targeted in the sweeping terrorism investigation launched after the Sept. 11 attacks is unconstitutional.

The decision by U.S. District Judge Nancy G. Edmunds is the first by a federal judge on the controversial issue of closed hearings and could have a broad influence.

"This has national ramifications," said Lee Gelernt, a senior staff attorney at the Immigrants' Rights Project of the American Civil Liberties Union. The ACLU has a similar case pending in Newark, N.J., that is scheduled to be heard April 22.

"The judge made it clear that the judiciary cannot look away just because the government says [a case] has to do with 9/11," Gelernt said. "We suspect that the government has conducted hundreds of closed hearings, but it is impossible to know because there has been so much secrecy."

Justice Department spokesman Dan Nelson said department attorneys were reviewing the decision and would have no other immediate comment.

Wednesday's ruling arose in the case of Rabbih Haddad, a Lebanese native who is a longtime resident of Ann Arbor, Mich., and the founder of an Islamic charity that the government has been investigating since the attacks.

Haddad was taken into custody Dec. 14; the INS has held three closed hearings in his case, with another scheduled for Wednesday.

Elizabeth Hackett, an immigration judge in Detroit, has excluded the news media and the public from all of the hearings, saying she was following a Sept. 21 directive by Michael Creppy, the chief U.S. immigration judge.

The government is seeking to deport Haddad, the co-founder of Global Relief Foundation, as well as his wife and three of their four children. The government has said Haddad and his wife have overstayed their visas.

Also, the government has frozen Global Relief's assets. The group's office in Bridgeview, Ill., a Chicago suburb, was raided the same day Haddad was arrested.

The government contends that Global Relief glorifies "martyrdom through jihad," but the group denies that it has terrorist ties. A judge is supposed to rule Friday on Global Relief's motion that its assets be unfrozen.

In Wednesday's deportation case, Hackett, Creppy and U.S. Atty. Gen. John Ashcroft were named as defendants in lawsuits filed by the ACLU and attorneys representing four Michigan newspapers and Haddad.

Edmunds said the government policy is a clear violation of the 1st Amendment, noting a long U.S. tradition of open court proceedings and administrative hearings, including deportation hearings.

Justice Department lawyers contended that the closed proceedings did not violate due process and that any infringement on the 1st Amendment was minimal.

Judge Edmunds sharply disagreed.

"Haddad's right to remain in the United States will be decided at these proceedings," Edmunds wrote. "It is important for the public, particularly individuals who feel that they are being targeted by the government as a result of the terrorist attacks of Sept. 11, to know that even during these sensitive times the Government is adhering to immigration procedures and respecting individuals' rights."

The judge emphasized that "secrecy only breeds suspicion as to why the Government is proceeding against Haddad and aliens like him."

Edmunds acknowledged that the public's right of access to deportation hearings, as with other types of hearings, is not absolute. But she said that when the government tries to close such a hearing, that action should be subject to "strict scrutiny" to ensure that the government has not violated the Constitution.

She noted that closing the hearings was a "direct infringement" on the 1st Amendment rights of the media plaintiffs, including the Detroit Free Press, the Detroit News, the Ann Arbor News and the Metro Times of Detroit.

In addition to the newspapers, the ACLU represented U.S. Rep. John Conyers Jr. (D-Mich.), who also sought to have the hearings opened.

In an affidavit filed with the court, James S. Reynolds, chief of the terrorism and violent crimes section of the Justice Department's Criminal Division, said the hearings needed to be closed because "special-interest detainees could lead to public identification of individuals associated with them," as well as other investigative sources and potential witnesses.

Reynolds also contended that divulging the identity of detainees could impair the government's ability to infiltrate terrorist organizations.

Finally, Reynolds contended that the closure "is justified by the need to avoid stigmatizing 'special interest' detainees, who may ultimately be found to have no connection to terrorism."

Edmunds, who was appointed to the federal bench by the first President Bush in 1992, noted that the government had provided no reason why Haddad's hearing in particular needed to be closed.

Edmunds noted that in Haddad's case his identity and the date of his arrest already had been made public and had been the subject of considerable news coverage in Michigan.

And she emphasized that "neither in the Creppy directive nor elsewhere does the Government prohibit detainees in special interest cases (or their counsel or families) from revealing that information to the press and public. Thus, the interests the Government offers cannot support its closure of Haddad's case even under the most deferential standard of review."

The newspaper plaintiffs had requested the right to attend any future hearings and to obtain transcripts of the prior closed hearings. Edmunds issued a preliminary injunction granting those requests.

Edmunds also rejected the government's contention that she did not have jurisdiction to hear the case.

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