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The Supreme Court is about to get its first chance to debate the conflict between national security and public access to immigration hearings. At its May 22 private conference, the Court will take up North Jersey Media Group, et al. v. Ashcroft, No. 02-1289. Media outlets are asking the Court to overturn a ruling by the U.S. Court of Appeals for the 3rd Circuit that allowed the Bush administration to hold closed deportation hearings for so-called special interest aliens detained after the Sept. 11 terrorist attacks. Solicitor General Theodore Olson is urging the Court not to review the case, arguing that the policy may change and that most of the hearings have already occurred. His brief indicates that 766 detainees were designated as “special interest” cases, 611 closed hearings have been held, and 505 aliens were deported as a result. But Georgetown University Law Center professor David Cole, one of the lawyers challenging the closed hearings, says those arguments should not give the government a free pass to evade Supreme Court review. “The reality is that this is a practice the government could use again at any time with respect to any individual the attorney general designates, and the public won’t know if it is happening,” says Cole. Cole also suggests the government may be trying to avoid Supreme Court review out of fear of losing the case. “It does suggest some lack of confidence about the validity of their position, and with good reason,” says Cole. “Of the 12 judges who have reviewed this policy, all but two have said it is unconstitutional.” The case is one of many the Court will discuss May 22 with an eye toward deciding whether to grant or deny review. The Court also meets May 29. The appeal was brought by the North Jersey Media Group — which publishes newspapers in Bergen and Passaic counties — and the New Jersey Law Journal, a weekly newspaper owned by American Lawyer Media, which also owns Legal Times. The media organizations challenged the so-called Creppy memorandum, issued soon after the attacks by Chief Immigration Judge Michael Creppy, which ordered the exclusion of the public and the press from immigration hearings involving anyone designated by the attorney general to be of interest in terrorism investigations. Many of the secret proceedings were believed to be taking place in New Jersey, partly because the federal government was using detention facilities in the state. A U.S. district judge in New Jersey ruled for the media, citing the Supreme Court’s 1980 decision in Richmond Newspapers v. Virginia, which established a First Amendment right of access for the public and press to criminal proceedings. A 3rd Circuit panel disagreed last October, ruling 2-1 that the application of Richmond Newspapers to administrative proceedings such as deportation hearings was “open to debate as a theoretical matter.” Even under the principles of Richmond Newspapers, the circuit also said, the history of public access to such proceedings was too “recent and inconsistent” to justify requiring openness. National security concerns also weighed against public access, the majority said. Meanwhile, the Cincinnati-based 6th Circuit in January reached the opposite conclusion in Detroit Free Press v. Ashcroft. A 6th Circuit panel found the Richmond Newspapers precedent applied to the deportation hearing of alien Rabih Haddad. “The government has not identified one persuasive reason why openness would play a negative role” in deportation proceedings, the 6th Circuit said. American Civil Liberties Union lawyer Lee Gelernt, who wrote the brief on behalf of the New Jersey media organizations, says Supreme Court review is warranted not only because of the clear conflict between the 3rd and 6th Circuits, but because “the press and public have an overwhelming interest in knowing how — and how fairly — its government uses the power of detention and deportation.” The government policy, Gelernt argues, runs counter to “our nation’s understandable tradition of recoiling against secret proceedings where an individual’s freedom is at issue.” Olson, the solicitor general, argues that because the 6th Circuit ruling involves a single alien who has since been ordered deported, the circuit conflict is “not sufficiently pressing or mature to warrant this court’s resolution.” In addition, Olson says in the brief, “the passage of time has all but exhausted the class of special interest aliens currently facing proceedings before an immigration judge.” Only four special-interest detainees remain in the country, he says, and only one still faces possible immigration proceedings, he notes. Because the Creppy memorandum itself is under review, along with other deportation procedures, Olson also tells the Court that Supreme Court review “would be premature.” In a reply brief, Gelernt argues that “the Court should not deny certiorari based on the government’s vague assurance that it may revise its policies at some undisclosed future time and that those revisions may alter the legal framework.” Olson makes a national security argument as well, offering the Court several examples of how information revealed at an open deportation proceeding could help terrorists. “Information about what evidence the government has against members of a particular terrorist cell (and what evidence the government lacks) would assist terrorists in determining which cells to use for attack,” Olson’s brief states. OTHER CASES UP FOR REVIEW May 22: • Baldwin v. Reese, No. 02-964. Elements needed to establish that a federal claim was raised in state court for the purposes of triggering habeas review in federal court. • United States Shoe Corp. v. United States, No. 02-1221. Whether the federal government must pay interest on refunds under the Harbor Maintenance Tax Fund, which was declared unconstitutional in 1998. • United States Postal Service v. Flamingo Industries, No. 02-1290. Whether the U.S. Postal Service can be sued under federal antitrust laws. • San Francisco v. Bank of America, No. 02-1404. Whether the local regulation of ATM fees is pre-empted by the National Bank Act. • Page v. Schultz, No. 02-1410. Standard for habeas review of a state court determination that a capital defendant was not entitled to the appointment of a mental health expert to assist in his defense. • Brelsford v. Rutter & Wilbanks Corp., No. 02-1422. Due process rights for objectors to class action settlements. May 29: • Donato v. United States, No. 02-1191. Whether a district court that is resentencing a defendant after remand may sentence the defendant de novo, when the appellate court did not specify limits on the scope of resentencing. • Credit Lyonnais Rouse Ltd. v. Ocean View Capital Inc., No. 02-1417. Questions of standing in antitrust price-fixing cases. • Poole v. Dyas, No. 02-1448. Due process rights for a defendant shackled during trial. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. Goldstein represents the petitioner in United States Shoe Corp. v. United States, 02-1221. He does not otherwise participate in the preparation of this column.

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