INS and Justice Losing Closure Battles: All Appealed

The federal trial court in Washington, D.C., became the most recent of several courts trying to force into the open the identities and status of people jailed by the U.S. Department of Justice and the Immigration and Naturalization Service since an INS sweep after September 11th.

Not long after the terror attack, Chief Immigration Judge Michael Creppy issued a directive to all United States Immigration Judges mandating that they close immigration proceedings to the press and public (including family members of the deportee) in certain "special interest" cases identified by the Office of the Chief Immigration Judge. The cases were not even to be listed on the courts’ dockets.

In addition to closing hearings, the INS had concluded that certain types of aliens could have "significant foreign intelligence or counter-intelligence information" sought by the United States, and were material witnesses, therefore it would not reveal whether these people had been detained or where they were being held. (The INS frequently contracts with county jails in order to hold people who are subject to deportation.)

Secret hearings and secret jailings are not typical fare in this country and now judicial reactions to those extraordinary steps to maintain secrecy have begun to play out. Lucy Dalglish, executive director of the Reporter’s Committee for Freedom of the Press, has been a major player in and keen observer of these events and will be able to discuss covering this story during the Legal Roundtable at the MDDC Annual Convention in Ocean City.

The Reporters Committee for Freedom of the Press and 20 other organizations brought a Freedom of Information Act lawsuit against the Department of Justice, INS and the FBI to get jail and court documents about detained individuals.

On August 3rd, a federal district court judge in Washington, Judge Gladys Kessler, gave the Department of Justice just 15 days to turn over the names of people who were detained by the INS in reaction to the attacks of September last year. In this most recent decision, Kessler remarked that secret arrests are "profoundly antithetical to the bedrock values that characterize a free and open [society] such as ours."

DOJ’s immediate reaction to Kessler’s decision was to issue a press release saying her order would impede their law enforcement efforts. Based on other similar cases, it is highly likely that DOJ will appeal this decision, but it had not done so at this writing.

In Detroit, last April, the Free Press and others won the first round to gain access to deportation hearings, based on traditional court access law. Wrote presiding U.S. District Court Judge Nancy G. Edmunds: "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."

DOJ appealed this decision to the 6th Circuit U.S. Court of Appeals, and the appeals court heard oral argument on August 6th.

In New Jersey, in a lawsuit based on New Jersey open records law, the trial court ruled in March that names of detainees in New Jersey jails had to be disclosed, but stayed its order long enough for DOJ to appeal. The state appeals court held that the federal government’s security claims pre-empted the state law requiring disclosure, so that case is again on appeal to the New Jersey Supreme Court.

A second New Jersey case, this one brought in federal court by two newspapers last May, also challenged the closure of deportation hearings, and resulted in an injunction against enforcement of the Creppy directive. In that case, the Supreme Court of the United States granted a stay against the injunction until the matter is heard by the 3rd U.S. Circuit Court of Appeals, and perhaps by the Supreme Court as well.

This is the "short list" of such cases; others are brought on behalf of the individual detainees. In his first reports on the number of people arrested and detained Attorney General John Ashcroft put the count at more than 1,200.

Judge Kessler’s decision on August 3rd reported that only 74 of the original 751 detainees remain in custody. The rest have been released, either cleared of wrong-doing or sent home, but without reports on their circumstances. The DOJ has released the names of all but one of the people who have federal criminal charges against them. There is no information on how many material witnesses are in custody, who they are or where they are.

Said Judge Kessler: "Unquestionably, the public’s interest in learning the identities of those arrested and detained is essential to verifying whether the government is operating within the bounds of the law."