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Appeals Court Keeps Open Deportation Hearings

April 19, 2002|HENRY WEINSTEIN | TIMES STAFF WRITER

A federal appeals court on Thursday rejected the Justice Department's effort to keep closed deportation hearings of individuals targeted in the sweeping terrorism probe launched after the Sept. 11 attacks.

The U.S. 6th Circuit Court of Appeals in Cincinnati rebuffed the government's request for an emergency stay of a U.S. district judge's April 3 ruling that the government's policy of closing such hearings is unconstitutional.

A three-judge panel of the 6th Circuit Court said there was only a "slim likelihood" that the government would prevail in its appeal of the decision by Judge Nancy G. Edmunds in Detroit.

The appellate judges--Martha C. Daughtrey, Karen N. Moore and R. Guy Cole Jr.--also said that it was "unlikely" that the government would suffer "irreparable harm" by complying with Edmunds' order pending its appeal.

In the first ruling by a federal judge on the closed hearings, Edmunds said the government must open deportation hearings in the case of Rabih 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 Sept. 11 attacks.

Edmunds also ordered the government to release transcripts of prior hearings held in the case. She acted in response to a suit filed by the American Civil Liberties Union's immigrant rights project on behalf of several plaintiffs, including U.S. Rep. John Conyers Jr. (D-Mich.) and the Detroit Free Press.

"We recognize that the government alleges substantial injuries to the integrity of its terrorism-related investigation, but the likelihood of such harms occurring in this particular case is remote, given the fact that information about Haddad's detention has already been disseminated," the 6th Circuit judges said. They were referring to widespread media coverage of Haddad's arrest Dec. 14.

ACLU attorney Lee Gelernt applauded the ruling. "I think it's significant that the court was simply unwilling to accept the government's assertion that the sky would fall in if there was no stay pending appeal. The court made it clear that the harm asserted by the government was speculative and not supported by concrete evidence," Gelernt said.

The Justice Department had no immediate comment.

In a related development Thursday, Atty. Gen. John Ashcroft issued a regulation forbidding non-federal authorities from releasing information about immigration detainees held in state and local facilities.

The move was an apparent attempt to override a ruling by a New Jersey state court that granted the ACLU access to records of detainees held in Hudson and Passaic counties. Hundreds of Arab Americans have been taken into custody in New Jersey since the attacks and held in two jails that have a contract with the Immigration and Naturalization Service.

New Jersey laws dating to 1898 mandate that the names and dates of entry of all inmates in county jails "shall be open to public inspection," without exception. However, the government had kept the names of the New Jersey detainees confidential.

On March 27, New Jersey Superior Court Judge Arthur D'Italia ordered that the names be made public. He spurned the contention of James S. Reynolds, chief of the Justice Department's Terrorism and Violent Crimes Section, that disclosure of the names would jeopardize the continuing investigation into terrorist activities. He also rejected the government's contention that disclosure would violate the inmates' privacy rights. The judge cited a 1969 decision of the U.S. Circuit Court of Appeals for the District of Columbia that described secret arrests as a "concept odious to democracy."

"With due respect to the government, nothing is easier for the government to assert than that the disclosure of the arrest of X may interfere with the ongoing investigation of Y," D'Italia said. The judge granted the government a stay pending appeal.

Deborah Jacobs, executive director of the ACLU of New Jersey, said the Justice Department's action Thursday shows it is "seeking to codify the right to secretly arrest and detain anyone they want in open defiance of the courts." The Justice Department did not return a call seeking comment.

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