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Warning that law enforcers have no right to suspend the normal workings of democracy even after attacks such as those of Sept. 11, a New Jersey state court judge ruled March 26 that county jail authorities could not keep secret the names of aliens detained on immigration charges for the federal government. The ruling, though it was immediately appealed and stayed, was the first clear victory for the American Civil Liberties Union in its efforts to learn the identities of Muslim men detained in secret since Sept. 11, and to open closed-door immigration hearings. The majority of post-Sept. 11 detainees have been kept in New Jersey on immigration violations, housed in Hudson and Passaic county jails under contract with the U.S. Immigration and Naturalization Service. The ACLU had brought four such suits nationally but until last week the civil rights organization had seen only limited success, obtaining a list of blacked-out names of detainees from the federal district court in Washington, D.C. On the ninth floor of a Hudson County, N.J., courthouse shrouded in daylong fog and rain, Superior Court Judge Arthur D’Italia said that the public has a right to county jail records under N.J.S.A. 30:8-16 (written in 1898) and N.J.A.C. 10A:31-6.5, both of which detail records that must be made available for public inspection, with few exceptions or qualifications. “The legislative purpose is to prevent secret arrests,” D’Italia said. He noted that no matter how awful the events of Sept. 11, nor how pressing the government’s investigation of the attacks, the federal government was still required to obey the law. “Nothing is easier for the government to assert that the disclosure of the arrest of X interferes with the investigation of Y.” During oral arguments, D’Italia made it plain to both sides that he wanted “common sense” to prevail. The motions required him to sift through at least four sets of statutes and regulations, framed between 1989 and 1997, some of which stood in contradiction to each other. He also chided both sets of lawyers for attempting to mush all the laws together: the ACLU for hoping that a joint reading indicated the records should be released, and federal government lawyers for hoping that the exceptions within those same regulations added up to a denial of the claim. “They’re not cumulative. They have to be analyzed separately,” D’Italia told the ACLU’s Ron Chen, associate dean of Rutgers Law School. Carol Federighi, senior counsel to the civil division of the federal programs branch of the U.S. Department of Justice, which had joined the suit as a third party, opened by recounting recent history and noting that “the disclosure could jeopardize the counter-terrorism investigation.” The judge interrupted her within seconds. “Stressing the horrors of Sept. 11 doesn’t analytically help us very much,” he said. “You can go on and on about Sept. 11 and the present state of affairs, but that won’t help you.” Federighi also argued that the inmates’ names should be kept secret as a privacy right, the object being that if their identities were known they could become targets for persuasion or harassment by al-Qaida. Releasing the names “could create a stigma, a harm,” she said. “So Sept. 11 gives you a right to privacy that committing a sex crime does not?” D’Italia asked. D’Italia immediately granted a stay pending the Justice Department’s appeal of his ruling. After the hearing, the ACLU’s Chen was jubilant. “It indicates a historical antipathy to secret detentions,” he said, “We’re a democratic society, and secret detentions are odious to that concept.” Federighi declined to comment. Passaic County, N.J., Counsel William Pascrell III said, “The county of Passaic has a contract with the federal government. That contract is binding, and until a court rules otherwise, we’re going to comply with that contract.”

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