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Last week, even as a federal judge was issuing a preliminary injunction against closed-door deportation proceedings for Muslim aliens rounded up since Sept. 11, U.S. Attorney General John Ashcroft was adopting new regulations providing for closure where law enforcement reasons are present. The interim rules, published May 28 in the Federal Register, tell judges to grant protective orders barring disclosure of information that would “harm the national security” and to close deportation proceedings at which such information is aired. 8 C.F.R. 3.27, 3.46. What’s more, the regulations call for sanctions against aliens and their lawyers who violate the protective order. The offending lawyer could be barred from appearing thereafter in immigration court hearings, and his or her client faces denial of any form of discretionary relief. A day later, Chief U.S. District Judge John Bissell in Newark, N.J., issued his preliminary injunction in North Jersey Media Group v. Ashcroft, 02-967, finding a strong likelihood that media plaintiffs will succeed in showing that barring them from “special interest” cases is “a clear case of irreparable harm to a right protected by the First Amendment.” The Herald News of West Paterson, N.J., and the New Jersey Law Journal, joined by the American Civil Liberties Union of New Jersey, claimed that the blanket closure of such hearings, ordered by Chief Immigration Judge Michael Creppy in a memorandum last fall, was an unconstitutionally broad use of the attorney general’s regulations. “The problem with the Creppy Memo is that there is nothing in it to prevent disclosure of this very information by the ‘special interest’ detainee or that individual’s lawyer, both of whom are permitted to be present in the ‘special interest’ proceedings,” Bissell wrote. His order enjoins the government “from closing to the public any immigration proceeding in the absence of case-specific findings demonstrating that closure is narrowly tailored to serve a compelling governmental interest.” The government appealed to the 3rd U.S. Circuit Court of Appeals on May 30 and moved for a stay of the ruling. On Wednesday, Bissell denied the government’s request for a stay pending appeal. Although measures taken since Sept. 11 have received broad popular support, judges at both state and federal level have found much to criticize. In April, for instance, Judge Nancy Edmunds of U.S. District Court in Michigan ruled in favor of the Detroit Free Press and other newspapers that had sued to attend the hearings of a controversial Muslim community leader, Rabih Haddad, who was arrested post-Sept. 11 for overstaying a six-month tourist visa. Detroit Free Press et al. v. Ashcroft, 02-70339 (2002). The government has relied heavily on a “mosaic” theory of counter-terrorism investigation to persuade the courts to approve restrictions on the public’s access to information. The “mosaic” theory is articulated at length in Ashcroft’s commentary on the new rule: “Apparently innocuous law enforcement or national security information may be valuable to persons with a broader view of a subject. See generally McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983) … ‘due to the mosaic-like nature of intelligence gathering, for example, what may seem trivial to the uninformed may appear of great moment to one who has a broad view of the scene.’” “Failure to protect sensitive information may impede future collection efforts or aid terrorists who seek to harm Americans by revealing the thrust, sources, and methods of the Government’s investigations,” Ashcroft says. Bissell found the government’s goal to be “serious and legitimate” but concluded that the same goal could “well be served” by closing hearings on a case-by-case basis. The new regulation, made retroactively effective on May 21, appears to be an attempt at that approach. It states that an immigration judge may seal papers, close proceedings and gag lawyers and clients on a case-by-case basis if there is “a substantial likelihood that specific information submitted under seal or to be submitted under seal will, if disclosed, harm national security … or law enforcement interests of the United States.” A spokeswoman for the Immigration and Naturalization Service declined to comment last Friday. Ed Barocas, legal director of the ACLU of New Jersey, greets the rule with caution. “To the extent that the regulation permits judges with specific information in specific cases to keep that information confidential, it would be consistent with Judge Bissell’s decision. If, in actuality, the government seeks to implement this regulation in a much more broad manner, it would be inconsistent,” he says. PUNISHING CLIENT AND LAWYER Perhaps the most controversial aspect of the new rules is contained in 8 C.F.R. 3.46(i), a section headed “Administrative enforcement.” It states that if a client or an attorney leaks information from a closed hearing, the lawyer may face suspension of the “privilege of appearing before the Executive Office of Immigration Review” and “the immigration judge shall deny all forms of discretionary relief, except bond,” to the respondent. That language could hurt a client even if the lawyer leaks information without the client’s permission. “The Department believes that most respondents will comply with the protective orders because disclosure of some sensitive information may imperil them directly,” Ashcroft states in his comments on the rule. But Barocas says, “It’s clearly an unusual situation where the client’s claim for relief is negated by an unauthorized act of his attorney.” Regis Fernandez, a Newark solo who has represented many special interest detainees, notes the flip side: A wayward client who transgressed the protective order could trigger a removal of the attorney’s privileges in immigration court. “It would effectively wipe out an immigration attorney’s entire practice,” he says. “It is a very serious sanction … it’s very scary.” Clifton, N.J., solo practitioner Sohail Mohammed expressed cynicism at the attorney general’s motives. “This protective order is nothing but the Department of Justice saying, ‘So what. We lose in court, we can come up with an alternative means of doing the same thing,’ ” he says. Mohammed has represented about 18 special interest clients of the 744 detainees, and was one of a number of attorneys briefed on the new rule in Newark last week by Creppy. A vocal critic of the post-Sept. 11 actions of immigration authorities, Mohammed is one of a handful of New Jersey lawyers upon whom the gag rule would likely weigh most heavily. He has several concerns, among them: � The rule allows only one side — the government — to move to seal the proceedings. � The rule could be broadly exploited as it does not define “law enforcement interests.” The rule merely requires the government to show those interests exist. � If an attorney successfully defeats a motion for a protective order, it will be automatically appealed to the Board of Immigration Appeals, leaving releasable clients languishing in jail. � A violation of the order would not only deprive an immigration attorney of his or her livelihood, it may also lead to action from the Office of Attorney Ethics, as the lawyer would have disobeyed a court order. � There is no time limit or expiration date once a protective order sealing a case is handed down. An attorney or a journalist wanting to research the story of Sept. 11 decades from now would have to go back to court to get the order lifted. On top of those individual concerns, Mohammed says, no national security information has come up in any of his clients’ hearings.

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