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The New Jersey Appellate Division on June 12 dealt the first substantive blow to the previously successful efforts of civil-rights advocates challenging the secret detention of immigrants in the wake of the Sept. 11 terrorist attacks. Judge Howard Kestin, joined by Judges Isaiah Steinberg and Edwin Alley, ruled that the federal government has the authority not to disclose a list of detainees in the Hudson and Passaic County, N.J., jails. The decision, ACLU v. Hudson County, A-4100-01T5, reversed Hudson County Assignment Judge Arthur D’Italia, who had framed the issue as a matter of interpreting New Jersey’s various Right to Know laws. D’Italia’s ruling was rejected because the Immigration and Naturalization Service had adopted a new rule, 8 C.F.R. 236.6, five days after D’Italia’s decision. That rule forbids the release of information about so-called Special Interest detainees without the INS’ permission. “Where there is an operational conflict, a federal regulation will pre-empt state law,” a power that comes from the supremacy clause of the Constitution’s Article VI, Kestin said. The American Civil Liberties Union had requested the names of detainees, imprisoned on behalf of the INS and the U.S. Department of Justice, so they could be provided with lawyers. Kestin, however, wrote that “the standing of the plaintiffs in this matter to raise those rights is doubtful even in the context of New Jersey’s liberal standing rules … especially where public interest is involved.” The government had argued that disclosing the names would assist terrorists in their plots against the country. U.S. Assistant Attorney General Robert McCallum hailed the judge’s decision to accept the Department of Justice’s “mosaic” theory. The logic of that theory justifies unusual acts of government secrecy where openness might assist terrorists. “Releasing the information at issue would undermine the ongoing investigation and assist terrorist organizations seeking to harm America. Such information about individuals detained for these immigration violations would assist terrorists to assemble a blueprint of the government’s strategy to fight the war on terrorism,” McCallum says. Indeed, Kestin wrote of the mosaic theory: “There can be no question that the government of the United States has a compelling interest in securing the safety of the nation’s citizens against terrorist attack … a court need only be satisfied that there is reasonable danger that disclosure of the information at issue will compromise national security.” Kestin’s decision cites with approval three cases that stem from the federal government’s successful attempts to protect the disclosure of shady government activity during the Cold War: CIA v. Sims, 471 U.S. 159 (1985); Halkin v. Helms, 194 U.S. App. D.C. 82 (1978); and United States v. Marchetti, 466 F.2d 1309 (1972). Plaintiffs seeking more information and access to Special Interest detainees previously won in three U.S. district courts — in Michigan; Newark, N.J.; and the Southern District of New York. “Our view is that this decision is an anomaly,” says ACLU-NJ Executive Director Deborah Jacobs. “Every other court ruling on government secrecy since Sept. 11 has courageously recognized that open government is essential to the success of our democracy. As one court [D'Italia's] put it, government secrecy is ‘odious to a democracy.’” As for Kestin’s view of the mosaic theory, ACLU-NJ Legal Director Ed Barocas says, “I think at best this would be dicta.” Ronald Chen, associate dean at Rutgers Law School-Newark, who argued the ACLU’s case before Kestin, agrees. Chen adds that Kestin goes on to say that the INS’ right to make new rules springs from the Immigration and Naturalization Act 8, U.S.C. 1101 to 1537, and that the national security interest is academic. Chen says the appellate judges did not base their decision on the mosaic theory but on the INS commissioner’s authority to write regulations that supersede state law. He adds: “Congress never gave him the power to do that.” Barocas adds that Kestin’s opinion also raises a question as to whether the INS commissioner has the right to make regulations that are not strictly about immigration. He notes that the new regulation barring release of information about the detainees’ identities deals only with public access to records. Kestin concluded that the regulation “still relates to immigration and naturalization in several ways.” The ACLU filed a petition for certification with the New Jersey Supreme Court the same day the appeals court issued its ruling.

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