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A Justice Department lawyer on Tuesday urged a three-judge panel of the 3rd U.S. Circuit Court of Appeals to uphold new immigration regulations announced just 10 days after the Sept. 11 terrorist attacks that require all deportation hearings of suspected terrorists to be closed to the press and public. The regulations were successfully challenged by the New Jersey Law Journal and the Herald News after reporters were denied access to deportation hearings in November 2001. (The New Jersey Law Journal is an affiliate of The Legal Intelligencer and law.com.) Chief U.S. District Judge John W. Bissell of the District of New Jersey found that the government’s practice of selectively closing immigration hearings to the public was unconstitutional. No matter how the 3rd Circuit rules, the issue is likely to be taken up by the U.S. Supreme Court because the 6th U.S. Circuit Court of Appeals also struck down the regulations. In 90 minutes of spirited oral arguments, the 3rd Circuit judges — Chief Judge Edward R. Becker and Judges Anthony J. Scirica and Morton I. Greenberg — had tough questions for both sides. Justice Department lawyer Gregory Katsas told the panel that opening the hearings could cause “harms that are potentially catastrophic,” including giving terrorist cells clues as to how they might better enter the country undetected. If the decision of whether to close the hearings is made on a case-by-case basis, Katsas said, potential informants would be chilled because the government would not be able to assure them that they would testify in a closed courtroom. Katsas also said the decision must be made by the executive branch because the importance of an individual case is sometimes not immediately apparent. Instead, he said, the war on terrorism is a complicated one in which the government must have the power to keep secret its progress — even against seemingly bit players. “It’s impossible to see the mosaic in isolation,” Katsas said. But attorney Lee Gelernt of the ACLU’s Immigrants’ Rights Project, urged the judges to uphold Bissell’s decision because the press and public have long enjoyed a right of access to deportation hearings. Gelernt said the newspapers were not asking that every hearing be open, but only that the court overturn regulations announced on Sept. 21 by Chief Immigration Judge Michael Creppy that effectively closed all terror-related hearings without any opportunity for assessing on a case-by-case basis whether closure was truly necessary. Many of the questions and remarks from the judges related directly to Sept. 11. “We could make a decision here … and people could die. Lots of people,” Judge Morton I. Greenberg said. Greenberg said he watched the World Trade Center attack unfold on television, and is wary of making a ruling that would aid in another attack. “I saw the second hit, and I can’t erase it from my mind,” he said. “If we make a decision that the government is wrong here, no one knows what the impact will be.” But Becker also had tough questions for Katsas, who argued that Bissell was wrong in holding that the press has a presumptive right of access to deportation hearings. “I understand that this case is headed to a higher court, but we are bound by 3rd Circuit precedent,” Becker said. Over the years, Becker said, the 3rd Circuit has significantly extended the U.S. Supreme Court’s decision in Richmond Newspapers v. Virginia, which announced a common-law right of access to criminal proceedings. In the 3rd Circuit, Becker said, the right now extends to civil trials and, in some cases, to executive agency proceedings. But Katsas insisted that, even under those cases, the newspapers would lose because they cannot show a long history and tradition of allowing access to deportation hearings. Instead, Katsas said, the law has long given the executive branch the power to exercise its discretion in deciding when to close hearings. When Gelernt was arguing, Becker noted that Social Security disability hearings are closed and that, despite their social importance, the closure has never been challenged. But Gelernt argued that “society has an overwhelming interest” in any case where an individual’s freedom is at stake. With the new regulations, Gelernt said, “the government is asking for abdication, not deference.” Gelernt insisted that history was on his side since the law has said for more than 40 years that deportation hearings “shall” be open. Becker, however, said that 40 years was not impressive in light of case law that seems to look for a history of openness that dates back to before the ratification of the Constitution, sometimes as far back as the Norman Conquest. And Katsas said in his rebuttal speech that Gelernt had failed to mention the most important aspect of the 40-year-old law — that it gives the executive branch the discretion to close hearings when it sees fit.

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