Judge Rejects Rule Closing Immigration Hearings

By Steve Fainaru
Washington Post Staff Writer
Thursday, April 4, 2002; Page A01



NEW YORK, April 3 -- A Justice Department policy to close immigration hearings deemed of "special interest" to the investigation into the Sept. 11 terrorist attacks is unconstitutional, a federal judge in Detroit ruled today.

The strongly worded ruling, in a consolidated lawsuit involving a Lebanese detainee and Detroit news outlets, represented the first federal decision against tactics employed by the government in the terrorist investigation, which has been criticized by civil liberties advocates for its secrecy.

The judge, Nancy G. Edmunds, rejected the government's argument that the closed hearings were necessary to protect national security and the integrity of the investigation. Despite the government's arguments, she wrote, "the subtext is all about the government's right to suspend certain personal liberties in the pursuit of national security."

"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 September 11, to know that even during these sensitive times the government is adhering to immigration procedures and respecting individuals' rights," Edmunds wrote.

The Justice Department has indicated it will appeal. It remained unclear what immediate effect the ruling would have on the policy, which has led to the closure of hundreds of immigration hearings of Sept. 11 detainees since it was laid out in a Sept. 21 memo issued by Chief Immigration Judge Michael J. Creppy.

A Justice Department spokesman, Mark Corallo, said: "We're reviewing the decision and will decide what steps to take in the near future."

Lee Gelernt, a lawyer who argued the case for the American Civil Liberties Union, which represented some of the plaintiffs, said he believed that the decision would have implications beyond the Detroit case. Civil liberties advocates said they hope a series of recent legal challenges -- including the Detroit case -- will help shed light on how the investigation of the attacks is being conducted, who has been detained and how the detainees are being treated.

Since the attacks, authorities have detained about 1,200 people, most of Arab and South Asian descent, in the investigation. Another 114 are jailed on criminal charges unrelated to terrorism, government figures show. The Justice Department has periodically released figures on the number of detainees -- the number had dropped to 327 by Feb. 15 -- but has refused to release their names.

In a separate ruling last week, a New Jersey judge ruled that under state law, the government must release the names of hundreds of detainees in New Jersey jails. The Justice Department, which had intervened in the case, is appealing. In another case, the ACLU is representing New Jersey news outlets that have challenged the constitutionality of the closed hearings.

"The larger significance of this ruling is that the judge refused to rubber-stamp the government's September 11 policies," said Gelernt. "The ruling sends a clear message that the role of the courts is more, not less, important in the aftermath of September 11."

The Detroit case revolves around a Lebanese citizen, Rabih Hadad, who was taken into custody by immigration officials on Dec. 14 and is still jailed. Hadad, of Ann Arbor, Mich., was held on charges that he had overstayed his visa. On the same day, authorities raided and closed the offices of the Global Relief Foundation, a charitable organization founded by Hadad. The government argued that the foundation had been used to funnel money to the Hamas, a militant Muslim group that the Bush administration has designated as a terrorist organization. Hadad and his supporters have denied funneling money to Hamas.

On Dec. 19, with reporters and Hadad's supporters in attendance, Hadad came before an immigration judge for a bail hearing. However, before the hearing began, Judge Elizabeth Hacker cleared the court. When Hadad objected, Hacker stated that the decision had been made by her supervisors and that she did not have the authority to keep the courtroom open.

The basis for the decision was a document widely referred to as "the Creppy Memo." In the memo, released by the nation's chief immigration judge, Creppy issued guidelines for cases "for which the Department of Justice is requiring special arrangements." Among other provisions, the guidelines stipulated that only judges with "secret clearance" could handle the special cases and that the courtroom must be closed -- "no visitors, no family and no press," said the memo.

In response, Hadad, the Detroit Free Press, other news outlets and Rep. John Conyers Jr. (D-Mich.) filed separate complaints challenging the policy and calling for the hearings to be opened. Edmunds later consolidated the cases.

In its arguments, the government provided an affidavit from James S. Reynolds, chief of the Terrorism and Violent Crimes Section of the Justice Department's Criminal Division, to explain the justification for the Creppy memo. Reynolds argued that the closed hearings were necessary to prevent "public identification of individuals associated with them," to encourage detainees to cooperate, to protect the "direction and progress of the investigation" and avoid stigmatizing the detainees.

Edmunds rejected those arguments, noting that Hadad's name had already been made public.

Staff researcher Margot Williams contributed to this report.



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